Omega Diagnostic Imaging, P.C. v Praetorian Ins. Co.

[*1] Omega Diagnostic Imaging, P.C. v Praetorian Ins. Co. 2016 NY Slip Op 50762(U) Decided on May 13, 2016 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 13, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Hunter, Jr., Ling-Cohan, JJ.
571068/15

Omega Diagnostic Imaging, P.C. a/a/o Unique Pettway, Plaintiff-Respondent,

against

Praetorian Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Paul L. Alpert, J.), entered June 8, 2015, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Paul L. Alpert, J.), entered June 8, 2015, affirmed, with $10 costs.

While defendant-insurer established that it timely and properly mailed the notices for examinations under oath to plaintiff's assignor and his attorney, and that the assignor failed to appear at the initial and follow-up EUOs (see Allstate Ins. Co. v Pierre, 123 AD3d 618 [2014]; see also Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]), the limited record so far developed presents triable issues as to whether the assignor's failure to appear was excusable (see IDS Prop. Cas. Ins. Co. v. Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2014]). In this regard, defendant's moving submission, which contains letters from its no-fault examiner and no-fault supervisor acknowledging the assignor's incarceration, creates rather than eliminates genuine triable issues. We note that the exact period of the assignor's incarceration remain unclear on this record.

We have considered and rejected defendant's remaining contentions.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concurI concur
Decision Date: May 13, 2016