Missing EUO Transcript Sinks No-Fault Summary Judgment: Forest Hills v Lancer

In no-fault insurance litigation, insurance companies often rely on Examinations Under Oath (EUOs) to challenge claims and establish defenses. However, simply conducting an EUO isn’t enough — the content and results of that examination must be properly documented and presented to the court. An appellate decision from the Appellate Term demonstrates how even when an insurance carrier has potentially strong evidence, failing to include crucial documentation can doom its motion for summary judgment.

This case highlights a fundamental principle in New York no-fault insurance law: the burden is on the insurance company to prove its defenses with sufficient evidence. When carriers take shortcuts in their motion practice, they risk losing cases they might otherwise win.

The Decision: Forest Hills Healthcare v Lancer

Forest Hills Healthcare Physician, P.C. v Lancer Ins. Co., 2021 NY Slip Op 51170(U)(App. Term 2d Dept. 2021)

“defendant’s moving papers contain a copy of plaintiff’s assignor’s sworn application for no-fault benefits in which plaintiff’s assignor swore that she was passenger in defendant’s insured’s vehicle when the accident occurred. In addition, although defendant’s moving papers contain a statement by defendant’s attorney that plaintiff’s assignor appeared for an examination under oath, what transpired at the examination under oath is not set forth. As such, contrary to defendant’s contention, defendant’s moving papers do not establish, prima facie, that plaintiff’s assignor was not a passenger in defendant’s insured’s vehicle when the accident occurred ”

An appeal that makes you say why.

Summary Judgment and the Prima Facie Burden

To understand why the carrier lost, start with the mechanics of summary judgment under CPLR 3212. The moving party bears the initial burden of establishing its entitlement to judgment as a matter of law through admissible evidence; only then does the burden shift to the opponent to raise a triable issue of fact. If the movant’s own papers fall short, the motion must be denied without regard to the sufficiency of the opposition.

Here, the carrier’s theory was that the assignor — the injured person who assigned her no-fault benefits to the treating provider — was not actually a passenger in the insured vehicle when the accident occurred. That is a coverage defense: if the claimant was not an eligible injured person under the policy, no benefits are owed. But the carrier’s own exhibits included the assignor’s sworn application for benefits stating that she was a passenger in the insured’s vehicle. To overcome a sworn statement in its own moving papers, the carrier needed evidence to the contrary — and the obvious source was the EUO it had conducted.

An EUO Without a Transcript Proves Nothing

An examination under oath is the no-fault carrier’s principal investigative tool: a transcribed, sworn examination of the claimant or provider about the accident, the treatment, and eligibility for benefits. Its evidentiary value lies entirely in the transcript. Sworn testimony in which a claimant contradicts her application, admits facts defeating coverage, or fails to explain inconsistencies can anchor a summary judgment motion.

In Forest Hills Healthcare, the moving papers contained only a statement by the carrier’s attorney that the assignor had appeared for an EUO — with no transcript and no account of “what transpired” at the examination. An attorney’s affirmation, standing alone, is not evidence of facts outside the attorney’s personal knowledge. The court was left with a sworn application saying the assignor was a passenger and nothing admissible saying otherwise. On that record, the prima facie showing failed as a matter of basic motion practice, and the Appellate Term said so.

Hence the one-line commentary above: this is the kind of appeal that makes you ask why it was taken. The defect was apparent on the face of the moving papers.

Why This Matters

For carriers and defense counsel: if a defense rests on what a witness said at an EUO, the transcript (or at minimum sworn excerpts establishing the relevant testimony) must be in the motion record, properly authenticated. Conducting the examination is the investigation; the transcript is the evidence. A motion assembled without it forfeits whatever the examination actually proved.

For medical providers and their counsel: the decision is a reminder to read the carrier’s exhibits as closely as its arguments. Internal contradictions — here, the carrier’s own submission of an application swearing to passenger status — can defeat the motion before the opposition is even reached. The movant’s papers must be tested for completeness: missing transcripts, attorney affirmations doing the work of fact witnesses, and conclusory assertions are all grounds to argue the prima facie burden was never met.

For claimants: the case shows that the no-fault system’s procedural safeguards have teeth. A carrier cannot defeat a claim by insinuation; it must prove its defense with admissible evidence, and courts hold it to that burden. The critical importance of thorough documentation in EUO proceedings runs in both directions.

Related Resources

• EUO requirements in New York no-fault insurance cases — the firm’s cluster hub on examination under oath law
• What makes out a prima facie case
• The firm’s Legal Encyclopedia — plain-language explainers on New York no-fault doctrine
• No-fault insurance defense practice