The EUO is not admissible?

The “New York Doctrine” and Assignor Declarations in No-Fault Litigation

Examinations Under Oath (EUOs) serve as critical investigative tools in New York No-Fault Insurance Law cases, allowing insurers to question claimants and providers under oath about potentially fraudulent claims. When medical providers assign their rights to collect no-fault benefits, questions arise about whether statements made by the assignor during an EUO can be used as evidence against the assignee provider. The evidentiary treatment of these statements implicates both hearsay rules and the unique “New York doctrine” regarding assignor declarations.

This case examines whether EUO testimony from an injured patient who assigned benefits to a medical provider constitutes an admission against interest that can be used to defeat the provider’s claim. The court’s analysis resurrects an older common law principle that protects assignees from being bound by post-assignment declarations of their assignors, potentially reshaping how EUO transcripts function in no-fault litigation.

Case Background

Masigla v MVAIC, 2020 NY Slip Op 51612(U)(App. Term 2d Dept. 2021)

The defendant Motor Vehicle Accident Indemnification Corporation (MVAIC) attempted to introduce the assignor’s EUO transcript as evidence at trial, arguing that the testimony constituted an admission against interest and fell within a recognized hearsay exception. The plaintiff medical provider objected, invoking the “New York doctrine”—a common law rule holding that declarations of an assignor, whether made before or after assignment, are inadmissible to affect the claim or title of a subsequent transferee for value.

The trial court examined precedents including JSI Expert Serv. v. Liberty Mut. Ins. Co. and CPT Med. Serv., P.C. v. Utica Mut. Ins., both of which applied the New York doctrine to exclude assignor EUO testimony in no-fault cases.

Jason Tenenbaum’s Analysis:

“The Court finds that defendant failed to establish that the assignor’s EUO transcript should be treated as an exception to the hearsay rule as a statement against interest. In a similar matter, JSI Expert Serv. v. Liberty Mut. Ins. Co., 7 Misc 3d 1000 (A) , the defendant attempted to use an EUO transcript as evidence at trial claiming, that the [*4]EUO transcript was a hearsay exception because it was an admission against interest. In JSI Expert Serv., the Court found that the “New York doctrine,” which states “In New York declarations of a vendor or assignor of a chattel or chose in action, whether made before or after the transfer, are inadmissible to affect the claim or title of a subsequent transferee for value” was applicable and therefore, the hearsay exception for admission against interest was inapplicable. Id. quoting Richardson on Evidence, Farrell 11th ed., §§ 8-239 and 8-241.

Similarly, in this matter plaintiff argues that the “New York Doctrine” is applicable and therefore, the EUO is not admissible. This is the same argument adopted by the Court in JSI Expert Serv. In 2006, this issue was again visited and it was held that, “the declarations of an assignor, whether made before or after the assignment, are inadmissible as against the assignee.” CPT Med. Serv., P.C. v. Utica Mut. Ins., 12 Misc 3d 237 . The Court finds the Court’s decisions in JSI Expert Serv. and CPT Med. Serv, to be persuasive, and that the “New York doctrine” in applicable in this instance therefore, the EUO testimony is hearsay and not admissible.”

EUO’s, if properly certified, are admissions. So are statements and videotapes. With new judges come the resurgence of some weird old law holdings. Global Liberty Ins. Co. v Laruenceau, 187 A.D.3d 570, 571 (1st Dept. 2020). History is prologue

Legal Significance of the New York Doctrine Revival

This decision resurrects a common law evidentiary principle that had been largely dormant in modern no-fault litigation. The “New York doctrine” protects assignees from being prejudiced by statements their assignors make after transferring rights. The policy rationale recognizes that assignees purchase claims in reliance on the legal merits as they exist at the time of assignment, and should not face evidentiary surprises based on subsequent assignor conduct or declarations.

However, the ruling creates tension with established precedent treating properly certified EUO testimony as admissions. As Jason Tenenbaum notes, Global Liberty Ins. Co. v Laruenceau from the First Department affirms the admissibility of EUO transcripts when properly authenticated. The conflicting approaches between trial-level decisions applying the New York doctrine and appellate decisions treating EUOs as admissions suggests this issue remains unsettled and may require definitive resolution from higher courts.

The precedential impact depends on whether appellate courts embrace or reject this application of the New York doctrine. If adopted broadly, the doctrine could fundamentally alter no-fault litigation by rendering assignor EUO testimony inadmissible against providers, significantly weakening insurers’ ability to prove fraud or material misrepresentations through patient testimony.

Practical Implications for Attorneys and Litigants

Medical providers defending against fraud allegations or claim denials should consider invoking the New York doctrine when insurers attempt to introduce assignor EUO testimony. While the precedents cited in this decision come from trial-level courts, they provide a colorable basis for exclusion arguments. Providers should be prepared to distinguish adverse appellate precedents like Laruenceau by arguing that those cases did not consider the New York doctrine’s application to assignee rights.

Insurance carriers must recognize the potential vulnerability of relying solely on assignor EUO testimony to defeat provider claims. Prudent carriers should supplement EUO evidence with independent proof of fraud or misrepresentation, including surveillance, medical examinations, and documentary inconsistencies. When assignor statements prove critical, carriers should attempt to secure those statements before the assignment occurs, as pre-assignment declarations may fall outside the New York doctrine’s protective scope, though this remains an area of legal uncertainty requiring careful analysis.

Related Articles

• Understanding EUO Requirements in New York No-Fault Insurance Cases
• When EUO counsel is not an attorney
• New York EUO Requirements: When Examination Under Oath Demands Are Untimely
• Validity of EUO, Appellate Term, 2d Dept: Take two
• New York No-Fault Insurance Law