Quality Health Prods. v Hertz Claim Mgt. Corp

[*1] Quality Health Prods. v Hertz Claim Mgt. Corp 2012 NY Slip Op 51722(U) Decided on August 31, 2012 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 31, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-1126 K C.

Quality Health Products as Assignee of CRAIG BEMBRY, SHAREL BENJAMIN and SHANNEL PETERS-DIOR, Appellant,

against

Hertz Claim Management Corp., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered January 18, 2011, deemed from a judgment of the same court entered March 29, 2011 (see CLPR 5501 [c]). The judgment, entered pursuant to the January 18, 2011 order granting defendant's motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

In this action to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court entered January 18, 2011 which granted defendant's motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant's motion was based on a claim that plaintiff's assignors had failed to appear for duly scheduled independent medical examinations (IMEs). Plaintiff argues on appeal that defendant's motion should have been denied because defendant failed to prove that plaintiff's assignors had failed to appear for the IMEs, as defendant's acupuncturist merely stated in his supporting affidavit that, "to the best of [his] knowledge," the assignors did not appear. However, a review of the affidavits submitted in support of defendant's motion reveals that defendant's chiropractor and orthopedist both stated, based upon their personal knowledge, that [*2]plaintiff's assignors had failed to appear for the IMEs scheduled with each of them. Plaintiff's assertion on appeal that neither defendant's chiropractor nor defendant's orthopedist actually had personal knowledge of the assignors' nonappearance is conclusory and unsupported by the record.

Plaintiff's remaining contentions lack merit. Accordingly, the judgment is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012