Compas Med., P.C. v Travelers Ins. Co.

[*1] Compas Med., P.C. v Travelers Ins. Co. 2015 NY Slip Op 51568(U) Decided on October 26, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 26, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-347 K C

Compas Medical, P.C. as Assignee of MICKAEL LOUIS, Appellant, -

against

Travelers Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered November 30, 2012. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, 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, the Civil Court granted defendant's motion for summary judgment dismissing the complaint, finding that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

While defendant submitted a sworn statement by the attorney who was assigned to conduct the EUOs, plaintiff correctly argues on appeal that counsel failed to demonstrate, by personal knowledge (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), or by any other appropriate means (see e.g. Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), that plaintiff had failed to appear for both of the EUOs. Therefore, defendant failed to establish its entitlement as a matter of law to summary judgment dismissing the complaint (see Stephen Fogel Psychological, P.C., 35 AD3d 720; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Quality Health Prods. v Hertz Claim Mgt. Corp., 36 Misc 3d 154[A], 2012 NY Slip Op 51722[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). Accordingly, the order is reversed and defendant's motion is denied.

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

Decision Date: October 26, 2015