Opinion
No. 2011–2352KC.
2013-05-22
OPTIMAL WELL–BEING CHIROPRACTIC, P.C. as Assignee of Andre Clifford, Respondent, v. HERTZ CO., Appellant.
Present: PESCE, P.J., RIOS and SOLOMON, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), dated June 30, 2011. The order, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff's motion for summary judgment and defendant's cross motion for summary judgment dismissing the complaint, stating that the only issue for trial would be whether plaintiff's assignor had appeared for examinations under oath. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint. Since defendant did not submit evidence from anyone with personal knowledge of plaintiff's assignor's nonappearances, defendant's cross motion for summary judgment dismissing the complaint was properly denied ( see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006] ).
Accordingly, the order, insofar as appealed from, is affirmed.