July 5, 2013

Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (2013 NY Slip Op 51123(U))

Headnote

The relevant facts the court considered in the case were that Bright Medical Supply Co. was seeking to recover first-party no-fault benefits, but the defendant had denied the claims based on the plaintiff's failure to appear for scheduled examinations under oath. The main issue decided was whether the defendant's motion for summary judgment dismissing the complaint should be granted. The holding of the case was that the defendant's motion was properly denied because they failed to submit proof from someone with personal knowledge of the plaintiff's nonappearance for the examinations under oath. Therefore, the order denying the defendant's motion was affirmed.

Reported in New York Official Reports at Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (2013 NY Slip Op 51123(U))

Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co. (2013 NY Slip Op 51123(U)) [*1]

Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co.

2013 NY Slip Op 51123(U) [40 Misc 3d 130(A)]

Decided on July 5, 2013

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 5, 2013

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

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-2147 K C.

Bright Medical Supply Co. as Assignee of LOURDES MARRERO, Respondent, —
against
IDS Property & Casualty Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered March 18, 2011. 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]).

Accordingly, the order is affirmed. [*2]

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: July 05, 2013