May 17, 2016

Vladenn Med. Supply, Corp. v American Commerce Ins. Co. (2016 NY Slip Op 50775(U))

Headnote

The main issues in this case were whether the defendant-insurer had met its burden to prove nonappearance at scheduled examinations under oath (EUOs), and whether the defense of failure to appear for EUOs could be asserted regardless of the timeliness of the denial. The court considered the evidence presented by the defendant, which failed to demonstrate personal knowledge of the office procedures when a claimant failed to appear for the EUOs, and noted that the affirmation of defendant's attorney did not state that he was the attorney assigned to conduct the EUOs. The court ultimately decided to affirm the denial of the defendant's motion for summary judgment, as the defendant had failed to meet its burden of proof, and also concluded that the defense of failure to appear for EUOs may be asserted by an insurer regardless of the timeliness of the denial.

Reported in New York Official Reports at Vladenn Med. Supply, Corp. v American Commerce Ins. Co. (2016 NY Slip Op 50775(U))

Vladenn Med. Supply, Corp. v American Commerce Ins. Co. (2016 NY Slip Op 50775(U)) [*1]

Vladenn Med. Supply, Corp. v American Commerce Ins. Co.

2016 NY Slip Op 50775(U) [51 Misc 3d 147(A)]

Decided on May 17, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 17, 2016

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Shulman, J.P., Hunter, Jr., Ling-Cohan, JJ.
570430/15

Vladenn Medical Supply, Corp. a/a/o Jocelyn Noel, Plaintiff-Respondent,
against
American Commerce Ins. Co., Defendant-Appellant.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Joseph E. Capella,, J.), entered May 24, 2013, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Joseph E. Capella,, J.), entered May 24, 2013, affirmed, without costs.

We sustain the denial of defendant-insurer’s motion for summary judgment dismissing this first-party, no-fault action. Defendant failed to “meet its burden by proof in admissible form, because it submitted no evidence from anyone with personal knowledge of the nonappearances [at the scheduled examinations under oath (EUOs)]” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). In this regard, we note that while the affirmation of defendant’s attorney described the office procedures for contacting a claimant 48 hours prior to the scheduled EUO to confirm the appearance, it failed to demonstrate personal knowledge of the office procedures when a claimant failed to appear for the EUOs on the scheduled dates (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [2013]). Nor did the affiant state that he was the attorney assigned to conduct the EUOs, (cf. Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [2015]).

Insofar as the motion court also concluded that the claims were untimely denied, we note that the defense of failure to appear for EUOs may be asserted by an insurer regardless of the timeliness of the denial (see Allstate Ins. Co. v Pierre, 123 AD3d 618 [2014]; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [2011], lv denied 17 NY3d 705 [2011]). .

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: May 17, 2016