EUO No-Show Proof Fails Without Personal Knowledge: TAM Med. Supply v Ameriprise

Key Takeaways

• In TAM Med. Supply Corp. v Ameriprise Auto & Home, the Appellate Term denied the insurer summary judgment on its EUO no-show defense.
• The fatal defect: no proof from anyone with personal knowledge that the plaintiff failed to appear for the examinations under oath.
• Proof of nonappearance must come from a witness who was actually present — typically the attorney assigned to conduct the EUO.
• Carriers that rely on conclusory or hearsay-based affidavits keep losing these motions, and the pattern shows no sign of stopping.

Insurance Company’s EUO Motion Fails Due to Inadequate Proof

In New York no-fault insurance disputes, examinations under oath (EUOs) serve as a critical investigative tool for insurance companies evaluating claims. When a plaintiff fails to appear for a scheduled EUO, insurers often move for summary judgment to deny the claim entirely. However, as this Appellate Term decision demonstrates, insurance companies must provide proper evidentiary support for their motions — a requirement that many carriers continue to overlook.

The fundamental issue in EUO non-appearance cases centers on proof. Courts require testimony or affidavits from individuals with personal knowledge of the alleged non-appearance. This seemingly straightforward requirement has proven to be a persistent stumbling block for insurance companies, leading to repeated losses in EUO cases across New York courts.

The pattern is clear: insurance companies frequently submit deficient affidavits that lack the necessary foundation of personal knowledge, resulting in denied summary judgment motions and continued litigation costs.

Jason Tenenbaum’s Analysis:

TAM Med. Supply Corp. v Ameriprise Auto & Home, 2016 NY Slip Op 51407(U)(App. Term 2d Dept. 2016)

“Plaintiff correctly argues that, because defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the examinations under oath in question, defendant’s cross motion for summary judgment should have been denied”

Oleg, is this the famous “would’ve, could’ve, should’ve but didn’t” affidavit that always loses?

The Legal Framework: EUOs as a Condition Precedent

Under the no-fault regulation, 11 NYCRR Part 65, an eligible injured person’s (or a medical provider assignee’s) appearance at a properly scheduled examination under oath is a condition precedent to the insurer’s liability on the policy. When the claimant or assignor fails to appear twice, the carrier may deny the claim outright — a defense that, when proven, defeats the claim regardless of the medical merits of the underlying bills.

But “when proven” is doing a lot of work in that sentence. To prevail on summary judgment, the carrier generally must establish three things: (1) that the EUO scheduling letters were timely and properly mailed, (2) that the claimant failed to appear on both scheduled dates, and (3) that the claim was denied on no-show grounds within the regulatory timeframe. Each element requires evidence in admissible form under CPLR 3212 — the summary judgment statute — and each is a separate opportunity for the motion to fail.

The nonappearance element is where TAM Med. Supply went off the rails. A claims examiner reviewing a file note that says “claimant did not show” is reciting hearsay. The only witness who can competently swear to the no-show is someone who was physically present at the scheduled time and place — usually the attorney retained to conduct the examination, who waited in the conference room while no one walked through the door. The EUO requirements in New York no-fault cases have been litigated relentlessly precisely because carriers keep trying shortcuts on this point.

What Proper Proof of Nonappearance Looks Like

A sufficient nonappearance affidavit or affirmation typically comes from the EUO attorney and states, in substance: I was assigned to conduct the EUO of the plaintiff on the two scheduled dates; I was present at the designated office at the appointed times; the plaintiff did not appear on either date; and I have personal knowledge of these facts because I was there.

Contrast that with what carriers too often submit: an affidavit from a claims representative who reviewed the file, or from a supervisor at the vendor that scheduled the examinations, neither of whom was in the room. Those affidavits describe what the file says happened — not what the affiant observed. Courts treat them as hearsay-based affidavits that consistently fail to satisfy the personal-knowledge standard.

The holding in this case is blunt: without proof from someone with personal knowledge of the nonappearance, the carrier’s summary judgment motion must be denied. There is no workaround, and the Appellate Term has said so repeatedly.

Why This Matters for Carriers, Providers, and Counsel

For insurance carriers, the lesson is operational. The EUO no-show defense is one of the strongest tools in the no-fault defense arsenal, but it is only as good as the paper trail behind it. Every EUO assignment should generate a contemporaneous record from the conducting attorney — a “bust” statement on the record or a same-day memo — that can later be converted into a competent affirmation.

For medical providers and their counsel, this line of cases is the first place to look when opposing a no-show motion. Scrutinize who signed the nonappearance affidavit and what it actually says about the affiant’s presence. A facially impressive motion often collapses on this single deficiency.

Practice Pointers

• Identify the right affiant before the motion is drafted. If the conducting attorney has left the firm, track them down; a substitute affiant rarely works.
• Bust the no-show on the record. A stenographic statement of nonappearance, taken at the scheduled time, is the gold standard of proof.
• Plaintiffs: read the jurat and the foundation. If the affiant does not say they were present, move to deny — the Appellate Term has done the rest of the work for you.

Frequently Asked Questions

What does an insurer have to prove to win on an EUO no-show defense in New York?

The carrier must show that the EUO scheduling letters were timely and properly mailed, that the claimant failed to appear on two scheduled dates, and that the claim was denied on that ground within the regulatory timeframe. Each element must be supported by evidence in admissible form, and the nonappearance must be established by someone with personal knowledge.

Who counts as a witness with “personal knowledge” of an EUO no-show?

Someone who was physically present at the scheduled time and place — most often the attorney assigned to conduct the examination. A claims examiner or vendor employee who only reviewed file notes does not have personal knowledge and cannot supply competent proof of the nonappearance.

What happens if the insurer’s no-show affidavit is hearsay?

The summary judgment motion fails. As TAM Med. Supply v Ameriprise holds, a motion unsupported by personal-knowledge proof of the nonappearance “should have been denied,” and the case continues toward trial.

Related Resources

• EUO Requirements in New York No-Fault Insurance Cases — the firm’s cluster hub on EUO law
• The firm’s Legal Encyclopedia
• No-Fault Defense practice
• EUO no show not substantiated
• Alrof Safeco made another sighting
• Alrof hits Ameriprise