Key Takeaway
Court rules EUO transcripts inadmissible as business records under CPLR 4518(a) when no examination occurred, highlighting evidentiary standards in no-fault cases.
This article is part of our ongoing no-fault coverage, with 271 published articles analyzing no-fault 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.
Charles Deng Acupuncture, P.C. v Titan Ins. Co., 2022 NY Slip Op 50300(U)(App. Term 2d Dept. 2022)
“Under CPLR 4518 (a), a business record—a “writing or record” that is “made as a memorandum or record of any act, transaction, occurrence or event”—will be admissible as proof of the acts, transactions, occurrences or events recorded, if the court finds that the record “was made in the regular course of any business and that it was the regular course of such business to make it, at the time of the act, transaction, occurrence or event, or within a reasonable time thereafter.” A transcript is a record of words that were uttered; while those words may describe an event, transcripts are generally not made as a memorandum or record of the event described. Here, defendant did not show a sufficient basis to admit counsel’s hearsay statements or that these transcripts should otherwise be treated as admissible pursuant to CPLR 4518 (a). Indeed, even if the transcripts could be treated as a “memorandum or record” of a nonappearance, rather than of a statement, there is no basis on this record to find that the record “was made in the regular course of any business” or “that it was the regular course of such business to make” a transcript as such a “memorandum or record” of a nonappearance (CPLR 4518 ).”
“We note that, while CPLR 3117 specifically permits deposition transcripts to be admitted into evidence at trials under certain circumstances, the CPLR is silent when it comes to EUO transcripts. To use a deposition transcript as evidence in chief at trial, as defendant attempted to use the EUO transcripts here, one of the requirements of CPLR 3117 (a) (3) must be met. Even if the transcripts at issue were to be treated as EUO transcripts notwithstanding that no examination took place, since, here, there was no showing that any of the grounds to permit the use of a deposition transcript were met, we need not decide whether CPLR 3117 (a) (3) can be extended to the use of EUO transcripts.”
“As defendant relied exclusively upon the transcripts of the “bust” statements to prove, at trial, that plaintiff failed to appear at the EUOs, and those transcripts were not properly admitted into evidence, defendant did not sustain its burden of proving that plaintiff had failed to appear for EUOs.”
“We note that, while CPLR 3117 specifically permits deposition transcripts to be admitted into evidence at trials under certain circumstances, the CPLR is silent when it comes to EUO transcripts. To use a deposition transcript as evidence in chief at trial, as defendant attempted to use the EUO transcripts here, one of the requirements of CPLR 3117 (a) (3) must be met. Even if the transcripts at issue were to be treated as EUO transcripts notwithstanding that no examination took place, since, here, there was no showing that any of the grounds to permit the use of a deposition transcript were met, we need not decide whether CPLR 3117 (a) (3) can be extended to the use of EUO transcripts.”
“As defendant relied exclusively upon the transcripts of the “bust” statements to prove, at trial, that plaintiff failed to appear at the EUOs, and those transcripts were not properly admitted into evidence, defendant did not sustain its burden of proving that plaintiff had failed to appear for EUOs.”
When the best evidence of a no-show is prohibited from being used at trial and, concomitantly on motion as it is not in affidavit form, does this mean the requisite proof to prove an EUO no-show has reached the so-called impossible level?
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Legal Context
Why This Matters for Your Case
New York's no-fault insurance system, established under Insurance Law Article 51, is one of the most complex insurance frameworks in the country. Every motorist must carry Personal Injury Protection coverage that pays medical expenses and lost wages regardless of fault, up to $50,000 per person.
But insurers routinely deny valid claims using peer reviews, EUO scheduling tactics, fee schedule reductions, and coverage defenses. The Law Office of Jason Tenenbaum has handled over 100,000 no-fault cases since 2002 — from initial claim submissions through arbitration before the American Arbitration Association, trials in Civil Court and Supreme Court, and appeals to the Appellate Term and Appellate Division. Jason Tenenbaum is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
His 2,353+ published legal articles on no-fault practice are cited by attorneys throughout New York. Whether you are dealing with a medical necessity denial, an EUO no-show defense, a fee schedule dispute, or a coverage question, this article provides the kind of detailed case-law analysis that helps practitioners and claimants understand exactly where the law stands.
About This Topic
New York No-Fault Insurance Law
New York's no-fault insurance system requires every driver to carry Personal Injury Protection (PIP) coverage that pays medical expenses and lost wages regardless of who caused the accident. But insurers routinely deny, delay, and underpay valid claims — using peer reviews, IME no-shows, and fee schedule defenses to avoid paying providers and injured claimants. Attorney Jason Tenenbaum has litigated thousands of no-fault arbitrations and court cases since 2002.
271 published articles in No-Fault
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Frequently Asked Questions
What is New York's no-fault insurance system?
New York's no-fault insurance system, codified in Insurance Law Article 51, requires all drivers to carry Personal Injury Protection (PIP) coverage. This pays for medical expenses, lost wages (up to $2,000/month), and other basic economic loss regardless of who caused the accident, up to $50,000 per person. However, to sue for pain and suffering, you must meet the 'serious injury' threshold under Insurance Law §5102(d).
How do I fight a no-fault insurance claim denial?
When a no-fault claim is denied, you can challenge it through mandatory arbitration under the American Arbitration Association's no-fault rules, or by filing a lawsuit in court. Common defenses to denials include challenging the timeliness of the denial, the adequacy of the peer review report, or the insurer's compliance with regulatory requirements. An experienced no-fault attorney can evaluate which strategy gives you the best chance of overturning the denial.
What is the deadline to file a no-fault claim in New York?
Under 11 NYCRR §65-1.1, you must submit a no-fault application (NF-2 form) within 30 days of the accident. Medical providers must submit claims within 45 days of treatment. Missing these deadlines can result in claim denial, though there are limited exceptions for late notice if the claimant can demonstrate a reasonable justification.
What no-fault benefits am I entitled to after a car accident in New York?
Under Insurance Law §5102(b), no-fault PIP covers necessary medical expenses, 80% of lost earnings up to $2,000/month, up to $25/day for other reasonable expenses, and a $2,000 death benefit. These benefits are available regardless of fault, up to the $50,000 policy limit. Claims are paid by your own insurer — not the at-fault driver's.
Can I choose my own doctor for no-fault treatment in New York?
Yes. Under New York's no-fault regulations, you have the right to choose your own physician, chiropractor, physical therapist, or other licensed healthcare provider. The insurer cannot dictate which providers you see. However, the insurer can request an IME with their chosen doctor and may challenge the medical necessity of your treatment through peer review.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
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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