May 13, 2016

Omega Diagnostic Imaging, P.C. v Praetorian Ins. Co. (2016 NY Slip Op 50762(U))

Headnote

The court considered the defendant insurer's motion for summary judgment dismissing the complaint in a case involving Omega Diagnostic Imaging, P.C. and Praetorian Insurance Company. The defendant insurance company had timely and properly mailed notices for examinations under oath to the plaintiff's assignor, who failed to appear. However, the court found that the limited record presented triable issues as to whether the assignor's failure to appear was excusable, especially given the assignor's incarceration during the relevant time period. The court ultimately affirmed the order denying the defendant's motion for summary judgment, stating that the defendant's moving submission created rather than eliminated genuine triable issues. The main issue decided was whether the assignor's failure to appear at the examinations under oath was excusable, and the holding of the court was that the issue presented triable issues and therefore the order denying the defendant's motion for summary judgment was affirmed.

Reported in New York Official Reports at Omega Diagnostic Imaging, P.C. v Praetorian Ins. Co. (2016 NY Slip Op 50762(U))

Omega Diagnostic Imaging, P.C. v Praetorian Ins. Co. (2016 NY Slip Op 50762(U)) [*1]

Omega Diagnostic Imaging, P.C. v Praetorian Ins. Co.

2016 NY Slip Op 50762(U) [51 Misc 3d 147(A)]

Decided on May 13, 2016

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 13, 2016

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Hunter, Jr., Ling-Cohan, JJ.
571068/15

Omega Diagnostic Imaging, P.C. a/a/o Unique Pettway, Plaintiff-Respondent,
against
Praetorian Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Paul L. Alpert, J.), entered June 8, 2015, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Paul L. Alpert, J.), entered June 8, 2015, affirmed, with $10 costs.

While defendant-insurer established that it timely and properly mailed the notices for examinations under oath to plaintiff’s assignor and his attorney, and that the assignor failed to appear at the initial and follow-up EUOs (see Allstate Ins. Co. v Pierre, 123 AD3d 618 [2014]; see also Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]), the limited record so far developed presents triable issues as to whether the assignor’s failure to appear was excusable (see IDS Prop. Cas. Ins. Co. v. Stracar Med. Servs., P.C., 116 AD3d 1005, 1007 [2014]). In this regard, defendant’s moving submission, which contains letters from its no-fault examiner and no-fault supervisor acknowledging the assignor’s incarceration, creates rather than eliminates genuine triable issues. We note that the exact period of the assignor’s incarceration remain unclear on this record.

We have considered and rejected defendant’s remaining contentions.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: May 13, 2016