October 19, 2016

Five Boro Med. Equip., Inc. v Praetorian Ins. Co. (2016 NY Slip Op 51481(U))

Headnote

The court considered the defendant-insurer's motion for summary judgment dismissing the underlying first-party no-fault action. The main issue decided was whether the defendant had submitted competent proof of the assignor's nonappearance at scheduled independent medical examinations (IMEs). The court held that the defendant’s motion for summary judgment should have been denied, as the conclusory affidavits of the defendant's IME doctors lacked probative value and failed to adequately state the basis of their recollection that the assignor did not appear on the scheduled IME dates. Therefore, the court reversed the order and denied defendant's motion.

Reported in New York Official Reports at Five Boro Med. Equip., Inc. v Praetorian Ins. Co. (2016 NY Slip Op 51481(U))

Five Boro Med. Equip., Inc. v Praetorian Ins. Co. (2016 NY Slip Op 51481(U)) [*1]

Five Boro Med. Equip., Inc. v Praetorian Ins. Co.

2016 NY Slip Op 51481(U) [53 Misc 3d 138(A)]

Decided on October 19, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 19, 2016

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, J.P., Schoenfeld, Ling-Cohan, JJ.
570196/16

Five Boro Medical Equipment, Inc., a/a/o Stephanie Roldan, Plaintiff-Appellant,
against
Praetorian Ins. Co., Defendant-Respondent.

Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Carol R. Feinman, J.), entered April 1, 2015, which granted defendant’s motion for summary judgment.

Per Curiam.

Order (Carol R. Feinman, J.), entered April 1, 2015, reversed, with $10 costs, and defendant’s motion denied.

Defendant-insurer’s motion for summary judgment dismissing the underlying first-party no-fault action should have been denied, inasmuch as it failed to submit competent proof of the assignor’s nonappearance at scheduled independent medical examinations (IMEs) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). The conclusory affidavits of defendant’s IME doctors lacked probative value, since they failed to adequately state the basis of their recollection, some three years later, that the assignor did not appear on the scheduled IME dates (see Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126[A], 2016 NY Slip Op 50339[U] [App Term, 1st Dept. 2016]; Metro 8 Med. Equip., Inc. v ELRAC, Inc., 50 Misc 3d 140[A], 2016 NY Slip Op 50174[U][App Term, 1st Dept. 2016]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: October 19, 2016