American Tr. Ins. Co. v Jaga Med. Servs., P.C.

American Tr. Ins. Co. v Jaga Med. Servs., P.C. 2015 NY Slip Op 03925 Decided on May 7, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on May 7, 2015
Mazzarelli, J.P., Renwick, Manzanet-Daniels, Clark, JJ.
15027 301291/12

[*1] American Transit Insurance Company, Plaintiff-Respondent,

v

Jaga Medical Services, P.C., et al., Defendants-Appellants, Michael Chedister, et al., Defendants.

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellants.

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for respondent.

Judgment, Supreme Court, Bronx County (John A. Barone, J.), entered July 12, 2013, which, to the extent appealed from, declared that defendants-appellants were not entitled to no-fault benefits as a result of a motor vehicle accident due to the claimant's failure to appear for scheduled examinations under oath (EUO), unanimously reversed, on the law, without costs, the underlying motion for summary judgment denied, and the judgment vacated.

The reason for the EUO request is a fact essential to justify opposition to plaintiff's summary judgment motion (see American Tr. Ins. Co. v Curry, 45 Misc 3d 171, 174-175 [Sup Ct, New York County 2013]), and such fact is exclusively within the knowledge and control of the movant. Further discovery on plaintiff's handling of the claim so as to determine whether, inter alia, the EUOs were timely and properly requested is also essential to justify opposition.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 7, 2015

CLERK