May 7, 2015

American Tr. Ins. Co. v Jaga Med. Servs., P.C. (2015 NY Slip Op 03925)

Headnote

In this case, American Transit Insurance Company sought a declaration that Jaga Medical Services, P.C. and other defendants were not entitled to a no-fault benefits due to the claimant's failure to appear for scheduled examinations under oath (EUO). The defendants-appellants argued that it was the responsibility of the plaintiff to request the EUO and demonstrate that it was properly scheduled and timely. The court considered these arguments and determined that the reason for the EUO request was essential to justify the opposition to plaintiff's summary judgment motion, and that such fact was exclusively within the knowledge and control of the movant. Therefore, further discovery on the plaintiff's handling of the claim was necessary to determine whether the EUOs were timely and correctly requested. Consequently, the underlying motion for summary judgment was denied, and the judgment was vacated.

Reported in New York Official Reports at American Tr. Ins. Co. v Jaga Med. Servs., P.C. (2015 NY Slip Op 03925)

American Tr. Ins. Co. v Jaga Med. Servs., P.C.

2015 NY Slip Op 03925 [128 AD3d 441]

May 7, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected through Wednesday, July 1, 2015

[*1]

American Transit Insurance Company, Respondent,
v
Jaga Medical Services, P.C., et al., Appellants, et al., Defendants.

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellants.

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for respondent.

Judgment, Supreme Court, Bronx County (John A. Barone, J.), entered July 12, 2013, which, to the extent appealed from, declared that defendants-appellants were not entitled to no-fault benefits as a result of a motor vehicle accident due to the claimant’s failure to appear for scheduled examinations under oath (EUO), unanimously reversed, on the law, without costs, the underlying motion for summary judgment denied, and the judgment vacated.

The reason for the EUO request is a fact essential to justify opposition to plaintiff’s summary judgment motion (see American Tr. Ins. Co. v Curry, 45 Misc 3d 171, 174-175 [Sup Ct, NY County 2013]), and such fact is exclusively within the knowledge and control of the movant. Further discovery on plaintiff’s handling of the claim so as to determine whether, inter alia, the EUOs were timely and properly requested is also essential to justify opposition. Concur—Mazzarelli, J.P., Renwick, Manzanet-Daniels and Clark, JJ.