October 30, 2015

Village Med. Supply, Inc. v Travco Ins. Co. (2015 NY Slip Op 51599(U))

Headnote

The main issues in the case were whether the plaintiff had failed to appear for scheduled examinations under oath (EUOs) and if the defendant's motion for summary judgment dismissing the complaint should be granted. The court considered the evidence submitted by the defendant, including an affirmation by an attorney who was assigned to conduct the EUOs of the plaintiff. However, the plaintiff argued that the defendant's motion should be denied because there was no proof that the defendant's counsel was present on the dates of the scheduled EUOs. The court held that the defendant's motion for summary judgment should be denied because the defendant failed to submit proof by someone with personal knowledge of the nonappearance of the plaintiff for the EUOs. Additionally, the court held that the plaintiff's cross motion for summary judgment was properly denied because the plaintiff failed to show that it had appeared for either of the EUOs. Therefore, the court modified the order by providing that the defendant's motion for summary judgment dismissing the complaint is denied.

Reported in New York Official Reports at Village Med. Supply, Inc. v Travco Ins. Co. (2015 NY Slip Op 51599(U))

Village Med. Supply, Inc. v Travco Ins. Co. (2015 NY Slip Op 51599(U)) [*1]

Village Med. Supply, Inc. v Travco Ins. Co.

2015 NY Slip Op 51599(U) [49 Misc 3d 141(A)]

Decided on October 30, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 30, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1410 K C

Village Medical Supply, Inc. as Assignee of Paola Dossa, Appellant,
against
Travco Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (William A. Viscovich, J.), entered May 2, 2013. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. The Civil Court granted defendant’s motion and denied plaintiff’s cross motion.

In support of its motion, defendant submitted an affirmation executed by the attorney who was assigned to conduct the EUOs of plaintiff to establish that plaintiff had failed to appear. However, as plaintiff notes, defendant’s motion papers do not unequivocally demonstrate that defendant’s counsel was present on the dates of the scheduled EUOs. As a result, defendant’s motion should have been denied because defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; 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]). Since plaintiff failed to show that it had appeared for either of the EUOs, plaintiff’s cross motion for summary judgment was properly denied (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant’s motion for summary judgment dismissing the complaint is denied.

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

Decision Date: October 30, 2015