Opinion
570196/16
10-19-2016
Five Boro Medical Equipment, Inc., a/a/o Stephanie Roldan, Plaintiff-Appellant, v. Praetorian Ins. Co., Defendant-Respondent.
PRESENT: Lowe, III, J.P., Schoenfeld, Ling-Cohan, JJ.
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