EUO No-Show: Attorney Affirmation Sufficient Despite Time Lapse Between No-Shows and Execution

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:

• 2010 — Partner’s affirmation held sufficient to demonstrate the no-show component of an EUO defense.

• 2012 — Attorney’s statement held sufficient to support EUO defense — “he did not show up” was enough.

• 2013 — Untimely EUO scheduling letters preclude the defense — procedural compliance matters.

• 2018 — Objective reasons not required for EUO demands — the insurer’s burden is limited to proving proper demand and non-appearance.

• 2019 — Comprehensive EUO requirements analysis — synthesis of the three-element test: (1) proper demand, (2) non-appearance, (3) timely denial.

• 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.

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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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