September 16, 2015

Clove Med. Supply, Inc. v IDS Prop. Cas. Ins. Co. (2015 NY Slip Op 51401(U))

Headnote

The court considered the motion for summary judgment by the defendant to dismiss the complaint, which was based on the plaintiff's failure to appear for scheduled examinations under oath (EUOs). The main issue decided was whether the defendant had timely and properly denied the claims at issue due to the plaintiff's nonappearance for the EUOs. The court held that the defendant's motion was properly denied because it failed to submit proof by someone with personal knowledge of the plaintiff's nonappearance for the EUOs in question. The order denying the defendant's motion for summary judgment was affirmed by the court.

Reported in New York Official Reports at Clove Med. Supply, Inc. v IDS Prop. Cas. Ins. Co. (2015 NY Slip Op 51401(U))

Clove Med. Supply, Inc. v IDS Prop. Cas. Ins. Co. (2015 NY Slip Op 51401(U)) [*1]

Clove Med. Supply, Inc. v IDS Prop. Cas. Ins. Co.

2015 NY Slip Op 51401(U) [49 Misc 3d 129(A)]

Decided on September 16, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 16, 2015

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

PRESENT: PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-91 K C

Clove Medical Supply, Inc. as Assignee of Luis Marrero, Respondent,
against
IDS Property Casualty Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered October 22, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 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 defendant had timely and properly denied the claims at issue based on plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). The Civil Court denied defendant’s motion.

Because defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question, defendant’s motion was properly denied (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]).

Accordingly, the order is affirmed.

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

Decision Date: September 16, 2015