Key Takeaway
Appellate Term holds attorney's affirmation sufficient for EUO no-show defense despite time lapse. GC Chiropractic v State Farm analysis. Call 516-750-0595.
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.
The Time-Lapse Question in EUO No-Show Defenses
One of the recurring evidentiary issues in EUO no-show cases has been the adequacy of the affiant’s attestation — specifically, whether a “significant lapse in time” between the alleged no-shows and the execution of the affirmation renders that affirmation insufficient. The Civil Court thought so. The Appellate Term disagreed.
GC Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co.
GC Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 2025 NY Slip Op 51982(U), *1 (App Term 2025)
The facts of this case are straightforward. State Farm established timely and proper mailing of the EUO scheduling letters and denials. The insurer moved for summary judgment on the EUO no-show defense. The Civil Court denied summary judgment, finding that the affirmation of defendant’s attorney attesting to plaintiff’s failure to appear for the EUOs was insufficient due to the “significant lapse in time” between the alleged no-shows and execution of the affirmation.
The Appellate Term reversed. The court held:
“Contrary to the finding of the Civil Court, defendant’s attorney’s affirmation, ‘on its face, … was not unworthy of belief … and was sufficient to demonstrate that plaintiff failed to appear for the scheduled EUO.’”
Why This Decision Matters
This ruling addresses a practical reality of no-fault litigation: cases take time. EUO scheduling, non-appearance, denial, and subsequent litigation can span months or years. If an attorney’s affirmation were automatically deemed insufficient because of the time gap between the EUO no-shows and the preparation of the motion papers, it would create an impossible evidentiary standard for insurers.
The Civil Court’s Error
The Civil Court’s reasoning — that a time lapse alone rendered the affirmation “unworthy of belief” — imposed a credibility determination at the summary judgment stage that was inappropriate. An affirmation is facially sufficient unless it is contradicted by other evidence in the record or is inherently incredible. The mere passage of time, without more, does not make an affirmation unworthy of belief.
This is particularly important because attorneys who handle EUO scheduling typically maintain contemporaneous records — scheduling letters, proof of mailing, attendance logs — that form the basis of their later affirmations. The affirmation does not rely solely on memory; it is based on business records and contemporaneous documentation.
The Evolving Standard for EUO No-Show Proof
The GC Chiropractic decision fits within a long line of cases refining the evidentiary requirements for EUO no-show defenses:
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2010 — Partner’s affirmation held sufficient to demonstrate the no-show component of an EUO defense.
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2012 — Attorney’s statement held sufficient to support EUO defense — “he did not show up” was enough.
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2013 — Untimely EUO scheduling letters preclude the defense — procedural compliance matters.
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2018 — Objective reasons not required for EUO demands — the insurer’s burden is limited to proving proper demand and non-appearance.
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2019 — Comprehensive EUO requirements analysis — synthesis of the three-element test: (1) proper demand, (2) non-appearance, (3) timely denial.
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2025 — GC Chiropractic — attorney’s affirmation is not rendered insufficient by time lapse alone.
Each decision has incrementally clarified what insurers must prove and what challenges plaintiffs may raise. The trend is clear: courts require procedural compliance from insurers but will not impose artificially heightened evidentiary standards on the proof of non-appearance itself.
Practical Implications
For Defense Practitioners
This decision reinforces that a properly executed attorney affirmation, based on office records and scheduling documentation, will satisfy the no-show component of the EUO defense even when prepared well after the non-appearances occurred. There is no need to execute affirmations contemporaneously with the EUO dates — a practice that would be impractical given that the no-show defense typically becomes relevant only when litigation is commenced.
For Plaintiff Providers
The challenge to the attorney’s affirmation based on time lapse alone is now foreclosed, at least in the Second Department’s Appellate Term. Providers contesting EUO no-show defenses should focus on other grounds:
- Was the EUO demand timely served within 15 business days of receiving the claim?
- Were the scheduling letters properly mailed?
- Was the denial timely issued after the no-show?
- Does the affirmation contradict other evidence in the record?
These substantive challenges remain viable. The time-lapse argument, standing alone, does not.
Connection to IME No-Show Standards
The GC Chiropractic holding parallels developments in the IME no-show context, where courts have similarly refined the evidentiary standard for proving non-appearance. The 2016 decision regarding an IME no-show affidavit executed 8 years prior raised similar time-lapse concerns in the IME context. The GC Chiropractic decision now addresses the parallel issue for EUOs.
The convergence of these standards makes practical sense: whether the missed appointment is an IME or an EUO, the evidentiary challenge of proving non-appearance is the same, and the passage of time affects the proof in the same way.
For questions about EUO no-show defenses, scheduling requirements, or any no-fault insurance matter, contact the Law Office of Jason Tenenbaum at 516-750-0595 for a free consultation.
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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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Dec 19, 2013Common Questions
Frequently Asked Questions
What is an Examination Under Oath (EUO) in no-fault insurance?
An EUO is a sworn, recorded interview conducted by the insurance company's attorney to investigate a no-fault claim. The insurer schedules the EUO and asks detailed questions about the accident, injuries, treatment, and the claimant's background. Under 11 NYCRR §65-3.5(e), appearing for the EUO is a condition precedent to receiving no-fault benefits — failure to appear can result in claim denial.
What happens if I miss my EUO appointment?
Missing an EUO (known as an EUO 'no-show') can result in denial of your no-fault benefits. However, insurers must follow strict procedural requirements: they must send two scheduling letters by certified and regular mail, provide adequate notice, and submit a timely denial based on the no-show. If the insurer fails to comply with these requirements, the denial can be overturned at arbitration or in court.
What questions will be asked at a no-fault EUO?
EUO questions typically cover your personal background, employment history, the circumstances of the accident, your injuries and symptoms, treatment received, prior accidents or injuries, and insurance history. The insurer's attorney may also ask about your daily activities and financial arrangements with medical providers. You have the right to have your attorney present, and your attorney can object to improper questions.
Can an insurance company require multiple EUOs for the same claim?
Yes, under 11 NYCRR §65-3.5(e), an insurer may request additional EUOs as reasonably necessary to investigate a claim. However, repeated EUO requests may be challenged as harassing or unreasonable. Courts have found that insurers cannot use EUOs as a tool to delay claims indefinitely. Each EUO request must be properly noticed with adequate time for the claimant to appear.
Do I have the right to an attorney at my EUO?
Yes. You have the right to have an attorney represent you at an EUO, and it is strongly recommended. Your attorney can prepare you for the types of questions asked, object to improper or overly broad questions, and ensure the insurer follows proper procedures. Having experienced no-fault counsel at your EUO can help protect your claim from being unfairly denied.
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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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