EUO No-Show Proof: Why a Law Firm Partner's Affirmation Must Show Personal Knowledge

No-fault insurance carriers frequently schedule examinations under oath (EUOs) as part of their investigation process when reviewing claims. When a claimant fails to appear for a scheduled EUO, the insurance company must prove this non-appearance to successfully defend against the claim. However, as this Appellate Term decision demonstrates, not just any proof will suffice—the evidence must come from someone with actual personal knowledge of the events.

The burden of proof in EUO no-show cases requires more than just an attorney’s say-so. Insurance companies cannot rely on secondhand information or assumptions when attempting to establish that a claimant failed to appear for their scheduled examination. This principle is particularly important in New York No-Fault Insurance Law, where procedural requirements must be strictly followed.

The court’s ruling reinforces that personal knowledge requirements cannot be circumvented through legal technicalities, even when EUO objections may seem futile to the claimant.

The Decision

Jason Tenenbaum’s Analysis:

Mind & Body Acupuncture, P.C. v American Commerce Ins. Co., 2017 NY Slip Op 50918(U)(App. Term 2d Dept. 2017)

“As plaintiff argued in opposition to defendant’s motion and on appeal, the affirmation by a partner in the law firm retained by defendant to conduct examinations under oath (EUOs) of plaintiff did not satisfy defendant’s burden of presenting proof by someone with personal knowledge of the nonappearance of plaintiff at the EUOs in question”

Interestingly: “no brief filed.” And, $30 in costs (the maximum the court can award)

The EUO No-Show Defense, in Context

The examination under oath is a condition precedent to coverage under the New York no-fault regulation. The mandatory personal injury protection endorsement requires the eligible injured person — and, by extension, a medical provider standing in the claimant’s shoes as assignee — to appear for an EUO when the insurer reasonably requests one. A failure to appear at duly scheduled EUOs is a complete defense to the claim, which is why the no-show defense is among the most heavily litigated issues in no-fault practice.

To win summary judgment on the defense, the insurer must generally establish two things with admissible proof: (1) that the EUO scheduling letters were properly mailed — usually through an affidavit describing a standard office mailing practice — and (2) that the claimant failed to appear on the scheduled dates. This case is about the second element.

Proving a negative — that someone did not show up — requires a witness who was in a position to know. In practice, that means an affidavit or affirmation from someone present at the scheduled time and place: typically the attorney assigned to conduct the examination, who can state that he or she was present, was prepared to go forward, waited, and that the claimant never appeared. Courts have accepted affirmations from the conducting attorneys precisely because they have firsthand knowledge of the empty conference room.

Where the Partner’s Affirmation Fell Short

The defect here was structural. The affirmation came from a partner in the law firm retained to conduct the EUOs — but, as the Appellate Term framed it, the affirmation did not demonstrate that the partner had personal knowledge of the nonappearance. A partner who supervises a file, reviews calendar entries, or learns of a busted EUO from an associate is relaying hearsay, not testifying to observed fact. The title on the letterhead adds nothing; what matters is whether the affiant can truthfully say “I was there, and the claimant was not.”

The procedural notes are telling. The decision records “no brief filed” — and the court nonetheless reversed on an argument the plaintiff had preserved below — along with an award of $30 in costs, the maximum available. Small numbers, but in a practice area built on volume, a defective no-show affirmation is rarely a one-case problem. The same template failure can infect hundreds of motions.

Why This Matters

For insurers and defense firms. Build the no-show proof around the person in the room. The affirmation should come from the attorney who appeared for the scheduled EUO and should recite presence, readiness to proceed, the wait, and the nonappearance — for each scheduled date. If a partner signs, the affirmation must spell out the basis for that partner’s personal knowledge rather than assume it. A business-records approach to no-show proof is possible in some circumstances, but it must be properly founded; a conclusory affirmation is neither personal knowledge nor a business record.

For providers and claimants’ counsel. Scrutinize the affiant in every EUO no-show motion. Who is this person, and how do they know the claimant did not appear? As this case shows, the objection should be raised in opposition — preservation mattered here — and it can carry the appeal even without further briefing.

Key Takeaway

This decision emphasizes that insurance companies cannot rely on their attorneys’ affirmations alone to prove EUO non-appearances. The person providing the proof must have direct, personal knowledge of the failed appointment. When discovery is waived due to improper objections, cases like this show that procedural missteps can still doom an insurance company’s defense, regardless of what actually occurred.

Related Resources

• EUO requirements in New York no-fault insurance cases — our cluster hub on examinations under oath
• Where was the partner?
• Partner’s affirmation demonstrated the “no-show” component of an EUO no-show defense
• EUO no show not substantiated
• The firm’s Legal Encyclopedia — doctrinal guides to New York no-fault defenses
• No-fault insurance defense practice