The if I was there EUO dance

Examinations Under Oath (EUOs) serve as critical investigative tools in New York no-fault insurance litigation, allowing carriers to examine claimants under oath about their claims. When claimants fail to appear for scheduled EUOs, insurance companies frequently move for summary judgment dismissing the claims based on the no-show. However, the sufficiency of proof required to establish an EUO no-show has generated significant litigation and evolving appellate standards.

The evidentiary standard for proving EUO no-shows traces back to the Court of Appeals’ decision in Alrof, which established that insurance companies must prove not merely that an EUO was scheduled, but that a qualified person was actually present and prepared to conduct the examination at the scheduled time and place. This requirement emerged from concerns about “drive-by” EUO scheduling—situations where carriers would schedule examinations but fail to have anyone available to actually conduct them, then use the claimant’s “no-show” as grounds for denial.

The Alrof standard created ongoing questions about what level of detail attorneys must provide in affirmations attesting to EUO no-shows. Must the attorney explicitly state they were physically present at the exact scheduled time? Is it sufficient to state they were “in the office” and “prepared” to conduct the examination? Can attorneys state conditionally that they “would have” conducted the EUO if the claimant appeared? These questions continue to generate litigation as courts grapple with balancing the need for meaningful proof against the reality that attorneys cannot remain perpetually stationed in examination rooms waiting for no-show claimants.

Case Background

In Parisien v Ameriprise Auto & Home, plaintiff brought a no-fault action seeking unpaid benefits. Defendant moved for summary judgment based on plaintiff’s failure to appear for two scheduled EUOs on December 2, 2014, and January 9, 2015. To establish the no-shows, defendant submitted affirmations from two different law firm partners who had scheduled the examinations.

The plaintiff challenged these affirmations as insufficient under Alrof, arguing they failed to establish that the attorneys were actually present at the specific times the EUOs were scheduled. The affirmations contained somewhat conditional language: one attorney stated he was “present in the office prepared to conduct the EUO” and “would have conducted the EUO if plaintiff had appeared.” The second attorney stated he “was present in the office” and “was in charge of determining whether the EUO would go forward,” and that “if plaintiff had appeared, he would have conducted the EUO or assigned another attorney to conduct it.”

The plaintiff contended this conditional phrasing—“would have conducted” and “if plaintiff had appeared”—failed to establish actual presence at the scheduled examination time. The Appellate Term rejected this argument and found the affirmations sufficient to demonstrate prima facie proof of the no-shows.

Jason Tenenbaum’s Analysis

Parisien v Ameriprise Auto & Home, 2022 NY Slip Op 50581(U)(App. Term 2d Dept. 2022)

” We reject that argument. Defendant submitted the affirmations of two different partners in the law firm representing defendant in this action, each addressing one of the two scheduled EUOs. m. in the firm’s offices on December 2, 2014; that counsel was present in the office prepared to conduct the EUO on that date; that he would have conducted the EUO if plaintiff had appeared; and that plaintiff did not appear. m.

in the firm’s offices on January 9, 2015; that counsel was present in the office on that date and was in charge of determining whether the EUO would go forward; that if plaintiff had appeared, he would have conducted the EUO or assigned another attorney to conduct it; and that plaintiff did not appear.

I would have denied the motion. This is the garbage affidavit that lead us to Alrof over a decade ago,

Legal Significance and Doctrinal Tensions

The Parisien decision reflects judicial willingness to accept somewhat generic attestations of EUO readiness despite the Alrof Court’s concerns about ensuring carriers actually provide examination opportunities. The conditional language that survived scrutiny here—“would have conducted” and “if plaintiff had appeared”—creates a standard that some practitioners view as insufficiently rigorous.

The decision reveals a practical tension in EUO no-show litigation. On one hand, courts recognize that attorneys cannot reasonably be expected to sit in examination rooms for hours awaiting no-show claimants. The conditional phrasing acknowledges this reality—attorneys prepare for examinations, make themselves available, but cannot literally remain in one place for the entire scheduled period. On the other hand, this flexibility risks returning to the pre-Alrof era where carriers could schedule examinations without genuine readiness to conduct them.

The second affirmation’s statement that the attorney “was in charge of determining whether the EUO would go forward” introduces additional ambiguity. This language suggests the attorney might not have personally conducted the examination even if the plaintiff appeared, instead potentially assigning it to another attorney. While the court accepted this as sufficient, it raises questions about whether the actually scheduled examiner must attest to readiness, or whether any senior attorney’s supervisory role suffices.

Practical Implications for Insurance Defense

Defense attorneys drafting EUO no-show affirmations should include specific factual details demonstrating actual readiness: (1) identify the specific date, time, and location of the scheduled EUO; (2) state affirmatively “I was present at [location] at [time] prepared to conduct the examination”; (3) describe preparatory steps taken—reviewing the file, preparing examination questions, arranging for court reporter; (4) explicitly state “I personally observed that plaintiff did not appear”; and (5) avoid purely conditional language that might suggest hypothetical rather than actual presence.

For providers and plaintiffs challenging EUO no-show motions, carefully review the defense affirmations for vague or conditional language. Press opponents in depositions about their actual location and activities at the scheduled examination time. Request production of calendar entries, time records, or other contemporaneous documents that might contradict claims of readiness. While Parisien accepted relatively generic attestations, courts may be more skeptical when plaintiffs present evidence undermining the claimed readiness.

The decision also highlights the importance of responding to EUO scheduling requests even when claimants cannot appear on the proposed date. Rather than simply not appearing, claimants should communicate scheduling conflicts and propose alternative dates. This creates a record showing good faith engagement with the EUO process, making it harder for carriers to argue the claimant is evading examination entirely.

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• Understanding IME No-Shows in New York No-Fault Insurance: Rights, Consequences, and Strategic Considerations
• No-Fault Verification Requirements: When Partial Compliance Isn’t Enough
• New York No-Fault Insurance Law