July 12, 2013

Eagle Surgical Supply, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 51265(U))

Headnote

The main issue in Eagle Surgical Supply, Inc. v GEICO Gen. Ins. Co. was whether the plaintiff's assignor had failed to appear for scheduled independent medical examinations (IMEs). The appellate court found that the defendant failed to meet its burden at trial, as it did not submit evidence from a person with personal knowledge of the alleged nonappearances. Consequently, the judgment dismissing the complaint was reversed, and the matter was remitted to the Civil Court for the entry of a judgment in favor of the plaintiff in the principal sum of $918.75, plus statutory interest and attorney's fees. The appellate court found in favor of the plaintiff, stating that the defendant did not establish that the assignor had failed to appear for the scheduled IMEs.

Reported in New York Official Reports at Eagle Surgical Supply, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 51265(U))

Eagle Surgical Supply, Inc. v GEICO Gen. Ins. Co. (2013 NY Slip Op 51265(U)) [*1]

Eagle Surgical Supply, Inc. v GEICO Gen. Ins. Co.

2013 NY Slip Op 51265(U) [40 Misc 3d 134(A)]

Decided on July 12, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2013

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

PRESENT: : ALIOTTA, J.P., PESCE and RIOS, JJ
2011-2587 K C.

Eagle Surgical Supply, Inc. as Assignee of YULIA SELDINA, Appellant, —
against
GEICO General Insurance Co., Respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Helen C. Sturm, J.H.O.), entered July 26, 2011. The judgment, after a nonjury trial, dismissed the complaint.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of plaintiff in the principal sum of $918.75, plus statutory interest and attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the sole issue for a nonjury trial was whether plaintiff’s assignor had failed to appear for scheduled independent medical examinations (IMEs). Following the trial, the Civil Court found that defendant had established that it had mailed IME notices and that the assignor had failed to appear for the examinations, and that plaintiff had failed to rebut defendant’s showing. Plaintiff appeals from the judgment dismissing the complaint.

Defendant’s sole witness at trial was the scheduling supervisor for Empire Stat, an independent company which, the witness explained, scheduled IMEs and mailed IME notices for [*2]defendant. The witness testified that, based upon his review of the file, he had determined that plaintiff’s assignor had not appeared for two scheduled IMEs. Plaintiff correctly argues that defendant failed to submit evidence from a person with personal knowledge of the alleged nonappearances (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, since defendant did not meet its burden at trial, judgment should have been awarded in favor of plaintiff.

Accordingly, the matter is remitted to the Civil Court for the entry of judgment in favor of plaintiff in the principal sum of $918.75, plus statutory interest and attorney’s fees due pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Aliotta, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 12, 2013