EMA Acupuncture, P.C. v Travelers Ins. Co.
Annotate this CaseDecided on February 18, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570955/15
EMA Acupuncture, P.C., a/a/o Virginia Zavala, Plaintiff-Respondent, -
against
Travelers Insurance Company, Defendant-Appellant.
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Jose A. Padilla, Jr., J.), entered May 7, 2013, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Jose A. Padilla, Jr., J.), entered May 7, 2013, affirmed, with $10 costs.
We sustain the denial of defendant-insurer's motion for summary judgment dismissing this first-party, no-fault action, albeit for reasons other than those stated by Civil Court. Our review of the record reveals that defendant failed to make a prima facie showing of entitlement to summary judgment, since it submitted no evidence from anyone with personal knowledge of plaintiff's nonappearances at the scheduled examinations under oath (EUOs) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). The affirmation of defendant's attorney failed to describe or demonstrate "personal knowledge of the office procedures when a claimant failed to appear for [an EUO]" (American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [2013]). Nor did the affiant allege that she was assigned to the file and would have conducted the EUO if plaintiff's principal had appeared (cf. Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]).
In view of our determination, we reach no other issues.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: February 18, 2016
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