Opinion
No. 570955/15.
02-18-2016
EMA ACUPUNCTURE, P.C., a/a/o Virginia Zavala, Plaintiff–Respondent, v. TRAVELERS INSURANCE COMPANY, Defendant–Appellant.
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 A.D.3d 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 A.D.3d 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 A.D.3d 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 concur.