July 14, 2017

Mind & Body Acupuncture, P.C. v American Commerce Ins. Co. (2017 NY Slip Op 50918(U))

Headnote

The court considered the fact that the provider was seeking to recover first-party no-fault benefits that had been assigned to them. The main issue was whether the defendant's motion for summary judgment dismissing the complaint should be granted. The court held that the defendant's evidence did not satisfy the burden of proving the nonappearance of the plaintiff at the examinations under oath. As a result, the defendant failed to establish their entitlement to summary judgment dismissing the complaint, and the court reversed the order and denied the defendant's motion for summary judgment.

Reported in New York Official Reports at Mind & Body Acupuncture, P.C. v American Commerce Ins. Co. (2017 NY Slip Op 50918(U))

Mind & Body Acupuncture, P.C. v American Commerce Ins. Co. (2017 NY Slip Op 50918(U)) [*1]

Mind & Body Acupuncture, P.C. v American Commerce Ins. Co.

2017 NY Slip Op 50918(U) [56 Misc 3d 131(A)]

Decided on July 14, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2017

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-928 K C

Mind & Body Acupuncture, P.C., as Assignee of Franks, Donald, Appellant,
against
American Commerce Ins. Co., Respondent.

Kopelevich & Feldsherova, P.C. (Galina Feldsherova, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 16, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.

As plaintiff argued in opposition to defendant’s motion and on appeal, the affirmation by a partner in the law firm retained by defendant to conduct examinations under oath (EUOs) of plaintiff did not satisfy defendant’s burden of presenting proof by someone with personal knowledge of the nonappearance of plaintiff at the EUOs in question (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). As a result, defendant failed to establish, as a matter of law, its entitlement to summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

PESCE, P.J., ALIOTTA AND SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 14, 2017