Medical Supply of NY Servs. Inc. v State Farm Mut. Auto Ins. Co. (2025 NY Slip Op 50301(U))

The Decision//Order on the Defendant’s Motion to reargue the motion for summary Judgment is as follows:

The plaintiff, MEDICAL SUPPLY OF NY SERVICES, INC. (the “Plaintiff”), as assignee of FELIX JUMA DIAZ (the “Assignor”) commenced this action against STATE FARM MUTUAL AUTO INS. CO. (the “Defendant”) to recover assigned first-party No-Fault benefits for medical treatment provided to the Assignor on May 17, 2023. The Defendant moved for summary judgment based upon Assignor’s failure to attend two duly scheduled Examinations Under Oath (“EUOs”) on September 8, 2023. On March 27, 2024, this Court denied the Defendant’s motion, finding there was an issue of fact regarding the Assignor’s failure to attend the EUOs. The Notice of Entry for the decision and order was filed April 2, 2024.

The Defendant filed the instant motion on May 2, 2024, for leave to reargue the motion for summary judgment on the basis that the Court overlooked or misapprehended matters of fact or law in its prior decision. Plaintiff filed opposition on October 21, 2024. Arguments were heard on December 19, 2024, and decision was reserved.

This Court held in the March 27, 2024 decision that the Defendant did not meet its burden of proof to establish that the Assignor failed to appear for the two scheduled EUOs. This Court held that the Defendant did not submit an affidavit or affirmation from an attorney present to conduct the EUO, only transcripts of the EUO.

Here, Defendant alleges that this Court misapprehended facts or law when issuing the Order dated March 27, 2024, because the Court overlooked the affidavit of Richard Aitken, Esq. In his affidavit, Mr. Aitken states that “[o]n December 7, 2022, FELIX JUMA DIAZ failed to appear for the examination under oath. Accordingly, I, a partner with the law firm of Bruno, Gerbino & Soriano, LLP placed a default statement on the record.”

A motion for leave to reargue shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include [*2]any matters of fact not offered on the prior motion. CPLR §2221.

“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case.” (Midfirst Bank v. Agho, 121 AD3d 343, (Sup. Ct., App Div., 2nd Dept., August 13, 2014), citing Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853, [1985]; Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]) “The submitted evidence in support of summary judgment must be in a form admissible at trial.” (Midfirst Bank v. Agho, 121 AD3d 343, [2014]) emphasis added.

An affidavit/affirmation from an attorney attesting the nonappearance of a plaintiff at an examination under oath (EUO) is of no probative value if it lacks personal knowledge of the plaintiff’s nonappearance. (Alrof, Inc. v. Safeco Nat. Ins. Co., 39 Misc 3d 130[A] [App. Term 2013].) In Alrof, the Court opined the affidavit submitted by defense counsel was of no probative value because his “personal knowledge” came from a review of the file. An affirmation submitted by an attorney, who was present in his office to conduct plaintiff’s EUO on the scheduled dates, is sufficient to establish that plaintiff had failed to appear. (Nat. Therapy Acupuncture, P.C. v. State Farm Mut. Auto. Ins. Co., 42 Misc 3d 137[A], 986 N.Y.S.2d 866 [App. Term 2014].)

The Court in New Capital Supply, Inc. v. State Farm Mut. Auto. Ins. Co., (45 Misc 3d 758 [NY County, 2014]) superbly explained the Appellate Term’s rulings in Alrof and its progeny. The elements of the proper attorney affidavit include a statement of personal knowledge that the attorney was present in the office to conduct the EUO of the witnesses on the schedule dates; that no one affiliated with the witness appeared for the EUO on those dates; that had the witness appeared for the scheduled EUO the affirmant, or an attorney the affirmant assigned that day, would have conducted the EUO of the witness. New Capital Supply, Inc. v. State Farm Mut. Auto. Ins. Co., 45 Misc 3d 758, 760-762.

In this matter, the affidavit of Richard C. Aitken Esq., the Defendant’s attorney, does not state that he was present at the time the EUO was scheduled to take place. Paragraph’s 4 and 6 of the affirmation state:

“On (relevant date) Felix Juma Diaz failed to appear for the examination under oath. Accordingly, I, a partner with the law firm of Bruno, Gerbino & Soriano, LLP, placed a default statement on the record. A certified copy of the default statement is annexed hereto as Exhibit G”.

The affidavit only states that the attorney placed a default statement on the record. Such a statement could have been made virtually, and therefore the deponent may not personally observe whether the witness attended. The act of placing the statement on the record does not mean the deponent was present at the scheduled time and location for the EUO. Without stating the attorney was present to observe the non-appearance, the declaration that the witness failed to appear is nothing more than a hearsay conclusory statement. The defense attorney’s statement did not meet the criteria described in New Capital Supply, Inc., et. al. above.

Furthermore, the transcript of EUO statement itself is not admissible evidence to be considered for a summary judgment motion. Charles Deng Acupuncture P.C. v. Titan Insurance Co., 74 Misc 3d 137(A) (Sup. Ct., App. Term, 2,11,13 Jud. Dist., April 1, 2022). While a deposition may be introduced as evidence provided the provisions of CPLR §3116 & §3117, the deponent did not submit a foundation for consideration of the transcript. Without such a [*3]foundation the document is hearsay, and therefore not admissible evidence to be considered regarding the summary judgment motion. Therefore, the Court cannot rely on the statements made within the default statement transcript as evidence or proof that the attorney was present in the office at the time the EUO was scheduled to take place.

For these reasons, the Court finds that the affidavit of Mr. Aitken was not overlooked when determining the prior motion because, as stated in the decision, the attorney affidavit did not establish the attorney was present at the time scheduled for the EUO.

Accordingly, Defendant’s motion to reargue is DENIED. The Court’s decision dated March 27, 2024 denying the Defendant’s motion for summary judgment stands.

This is the Decision and Order of the Court.