Kings County Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co.

[*1] Kings County Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co. 2016 NY Slip Op 51446(U) Decided on October 5, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 5, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-1123 K C

Kings County Chiropractic, P.C., as Assignee of HEMRAJ BALKRAN, Appellant,

against

State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 2, 2013. The judgment, entered pursuant to a February 28, 2013 order of the same court granting defendant's motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, the order entered February 28, 2013 is vacated, and defendant's motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from a judgment of the Civil Court entered pursuant to an order of the same court which granted defendant's motion for summary judgment dismissing the complaint.

Plaintiff correctly argues on appeal that defendant's motion, which sought summary judgment on the ground that plaintiff had failed to appear for examinations under oath, should have been denied, as defendant failed to submit proof by someone with personal knowledge of plaintiff's nonappearance (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the judgment is reversed, the order entered February 28, 2013 is vacated, and defendant's motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: October 05, 2016