December 22, 2017

Canon Chiropractic, P.C. v Metlife Ins. Co. (2017 NY Slip Op 51875(U))

Headnote

The court considered the fact that the defendant's motion for summary judgment dismissing the complaint was granted because the plaintiff's assignor had failed to appear for scheduled EUOs. The main issue decided was whether the defendant submitted proof of the assignor's nonappearance at the EUOs by someone with personal knowledge. The holding of the case was that the order was reversed, and defendant's motion for summary judgment dismissing the complaint was denied because the defendant failed to submit proof of the assignor's nonappearance at the scheduled EUOs. Therefore, the plaintiff's appeal was successful and the complaint was not dismissed.

Reported in New York Official Reports at Canon Chiropractic, P.C. v Metlife Ins. Co. (2017 NY Slip Op 51875(U))

Canon Chiropractic, P.C. v Metlife Ins. Co. (2017 NY Slip Op 51875(U)) [*1]

Canon Chiropractic, P.C. v Metlife Ins. Co.

2017 NY Slip Op 51875(U) [58 Misc 3d 141(A)]

Decided on December 22, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1014 K C

Canon Chiropractic, P.C., as Assignee of Joseph Miguel, Appellant,
against
Metlife Ins. Co., Respondent.

Gary Tsirelman, P.C. (Douglas Mace, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 19, 2014. 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, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Plaintiff correctly argues on appeal that defendant failed to submit proof by someone with personal knowledge of plaintiff’s assignor’s nonappearance at the scheduled EUOs (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 order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017