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This article is part of our ongoing euo issues coverage, with 197 published articles analyzing euo issues issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
Proving Non-Appearance at Examinations Under Oath: The Personal Knowledge Requirement
In New York’s no-fault insurance system, Examinations Under Oath (EUOs) serve as a critical tool for insurance companies to investigate claims and prevent fraud. When an assignor fails to appear for a scheduled EUO, insurers often attempt to deny coverage based on this non-cooperation. However, as demonstrated in a recent Appellate Term decision, insurance companies must meet specific evidentiary standards when claiming non-appearance occurred.
The burden of proof falls squarely on the insurance company to demonstrate that the assignor actually failed to appear for the EUO. This isn’t simply a matter of stating that someone didn’t show up – the law requires testimony from someone with personal knowledge of the alleged non-appearance. This evidentiary requirement protects healthcare providers and ensures that New York no-fault insurance law operates fairly.
The personal knowledge standard serves an important purpose in the legal system. It prevents hearsay evidence and ensures that only witnesses who actually observed or have direct knowledge of events can testify about them. In the context of EUO proceedings, this typically means the person who was present at the scheduled examination location, such as a court reporter, insurance representative, or office staff member, must provide testimony about the assignor’s failure to appear.
This case demonstrates how procedural requirements can significantly impact the outcome of no-fault insurance disputes, similar to issues we’ve seen in other EUO objection cases where technical compliance matters greatly.
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Jason Tenenbaum’s Analysis:
Active Care Med. Supply Corp. v Metlife Auto & Home, 2018 NY Slip Op 50772(U)(App. Term 2d Dept. 2018)
“Plaintiff correctly args on appeal that defendant failed to submit proof by someone with personal knowledge of plaintiff’s assignor’s nonappearance at an initial and follow-up EUO “
Legal Significance
The Active Care Medical Supply decision reinforces fundamental evidentiary principles that apply across all litigation contexts but prove particularly important in no-fault insurance disputes. The personal knowledge requirement serves multiple purposes: it ensures reliability of evidence, protects against fabricated claims, and prevents parties from introducing hearsay disguised as fact testimony. When an affiant lacks personal knowledge, their statements constitute inadmissible hearsay that cannot support summary judgment.
This holding builds upon prior decisions like Stephen Fogel Psychological, P.C. v Progressive Casualty Insurance Co., which established that affiants claiming EUO non-appearance must demonstrate they were actually present to witness the no-show. The requirement prevents insurance companies from submitting affidavits from employees who merely reviewed files or were told about non-appearances by others. Such second-hand knowledge fails to meet admissibility standards under CPLR 3212(b), which requires summary judgment evidence to be in admissible form.
The decision also highlights the distinction between direct personal knowledge and knowledge obtained through business records or other hearsay exceptions. While some courts have permitted proof of EUO non-appearance through sworn stenographic transcripts or certified records from court reporters (as referenced in Quality Psychological Services, P.C. v Interboro Mutual Indemnity Insurance Co.), mere employee affidavits reciting information from files prove insufficient without personal presence at the examination location.
This evidentiary requirement creates practical challenges for insurance companies, particularly when EUOs were scheduled months or years before summary judgment motions are filed. The court reporter or insurance representative who waited for the assignor may have left employment, be unavailable, or have no specific recollection of that particular no-show among dozens of similar occurrences. Nevertheless, the personal knowledge standard remains sacrosanct—procedural convenience cannot override evidentiary reliability.
Practical Implications
For insurance companies, this decision mandates systematic documentation of EUO non-appearances at the time they occur. Best practices include: (1) retaining certified court reporters who can provide sworn transcripts documenting non-appearance; (2) ensuring that insurance representatives or office staff who physically wait at EUO locations prepare contemporaneous affidavits documenting the no-show; (3) maintaining detailed records identifying which specific employee witnessed each non-appearance; and (4) preserving contact information for witnesses so they can be located if needed for future litigation.
When insurance representatives attend scheduled EUOs, they should document their presence through timestamped photographs, sign-in sheets, or other contemporaneous evidence. If using court reporters, insurers should request that the reporter create a record reflecting the scheduled examination time, the reporter’s presence, and the assignor’s failure to appear. These transcripts provide admissible evidence meeting the personal knowledge standard.
For healthcare providers challenging EUO no-show denials, this case provides a clear litigation roadmap. Providers should demand specific identification of who witnessed the alleged non-appearance and review affidavits carefully for personal knowledge deficiencies. Common red flags include: affidavits from law firm partners who weren’t present at EUOs; statements by claims adjusters reciting file review rather than personal observation; or vague references to “the assignor failed to appear” without identifying who was actually there to witness the no-show.
Providers should also consider deposing affiants who claim personal knowledge to test whether they actually remember the specific EUO or are simply providing boilerplate testimony. If the witness cannot recall details about the examination location, date, time, or other circumstances, their claimed “personal knowledge” may prove illusory.
Key Takeaway
Insurance companies cannot simply assert that an assignor failed to appear for an EUO without proper evidentiary support. The court must have testimony from someone who was actually present and can provide personal knowledge of the non-appearance. This ruling reinforces the importance of proper documentation and witness testimony in no-fault insurance disputes. Healthcare providers should be aware that EUO no-show scenarios require careful attention to procedural requirements, and insurers who fail to meet the personal knowledge standard may find their denial defenses unsuccessful, as we’ve observed in various Allstate EUO cases where similar evidentiary issues arose.
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
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Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
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