Acupuncture Healthcare Plaza I, P.C. v Hertz Co.

[*1] Acupuncture Healthcare Plaza I, P.C. v Hertz Co. 2016 NY Slip Op 50865(U) Decided on June 3, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 3, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1694 Q C

Acupuncture Healthcare Plaza I, P.C., as Assignee of TRAVIS BROWN, Appellant,

against

Hertz Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 9, 2013. 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's assignor had failed to appear for duly scheduled examinations under oath (EUOs) and independent medical examinations (IMEs).

The branch of defendant's motion seeking summary judgment on the ground that plaintiff's assignor had failed to appear for EUOs should have been denied, as defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff's assignor (see 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]). Similarly, the branch of defendant's motion seeking summary judgment based upon the failure of plaintiff's assignor to appear for IMEs should have been denied, as neither of the doctors who had been scheduled to perform the IMEs demonstrated personal knowledge of the nonappearance of plaintiff's assignor for the IMEs (see Bright Med. Supply Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U]).

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.

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

Decision Date: June 03, 2016