February 18, 2016

EMA Acupuncture, P.C. v Travelers Ins. Co. (2016 NY Slip Op 50173(U))

Headnote

The court considered the appeal made by the defendant-insurer from an order of the Civil Court of the City of New York denying its motion for summary judgment dismissing the complaint by EMA Acupuncture, P.C. The main issue decided was whether the defendant had made a prima facie showing of entitlement to summary judgment. The court held that the denial of the defendant-insurer's motion for summary judgment was sustained, as they failed to provide any evidence from someone with personal knowledge of the plaintiff's nonappearances at scheduled examinations under oath. The court determined that the affirmation of the defendant's attorney did not demonstrate personal knowledge of the office procedures when a claimant failed to appear for an examination under oath, and therefore the defendant's motion for summary judgment was denied.

Reported in New York Official Reports at EMA Acupuncture, P.C. v Travelers Ins. Co. (2016 NY Slip Op 50173(U))

EMA Acupuncture, P.C. v Travelers Ins. Co. (2016 NY Slip Op 50173(U)) [*1]

EMA Acupuncture, P.C. v Travelers Ins. Co.

2016 NY Slip Op 50173(U) [50 Misc 3d 140(A)]

Decided on February 18, 2016

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 18, 2016

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman, JJ.
570955/15

EMA Acupuncture, P.C., a/a/o Virginia Zavala, Plaintiff-Respondent,
against
Travelers Insurance Company, Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Jose A. Padilla, Jr., J.), entered May 7, 2013, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Jose A. Padilla, Jr., J.), entered May 7, 2013, affirmed, with $10 costs.

We sustain the denial of defendant-insurer’s motion for summary judgment dismissing this first-party, no-fault action, albeit for reasons other than those stated by Civil Court. Our review of the record reveals that defendant failed to make a prima facie showing of entitlement to summary judgment, since it submitted no evidence from anyone with personal knowledge of plaintiff’s nonappearances at the scheduled examinations under oath (EUOs) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). The affirmation of defendant’s attorney failed to describe or demonstrate “personal knowledge of the office procedures when a claimant failed to appear for [an EUO]” (American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [2013]). Nor did the affiant allege that she was assigned to the file and would have conducted the EUO if plaintiff’s principal had appeared (cf. Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]).

In view of our determination, we reach no other issues.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concurDecision Date: February 18, 2016