Opinion
570002/19
09-20-2019
SATYA DRUG CORP., a/a/o Attiya Alexander, Plaintiff-Respondent, v. GLOBAL LIBERTY INSURANCE COMPANY OF NEW YORK, Defendant-Appellant.
Per Curiam.
Order (Debra R. Samuels, J.), entered November 27, 2018, affirmed, with $10 costs.
Defendant-insurer's motion for summary judgment dismissing the underlying first-party no-fault action was properly denied, inasmuch as it failed to submit competent evidence 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 affirmation of defendant's IME doctor lacked probative value, since he failed to adequately state the basis of his recollection, some 16 months later, that the assignor did not appear on the scheduled IME dates (see Utica Acupuncture P.C. v. Amica Mut. Ins. Co. , 55 Misc 3d 126[A], 2017 NY Slip Op 50331[U] [App Term, 1st Dept 2017] ; Five Boro Med. Equip., Inc. v. Praetorian Ins. Co. , 53 Misc 3d 138[A], 2016 NY Slip Op 51481[U] [App Term, 1st Dept 2016] ). Nor was personal knowledge of the assignor's nonappearance established by the affidavit from the IME scheduling vendor. "The ‘mere fact that the recording of [the] third-party statements [of nonappearances] by the [IME doctor] might be routine, imports no guarantee of the truth, or even reliability, of those statements’ ( Matter of Leon RR , 48 NY2d 117, 123 [1979] ; cf. Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co. , 25 NY3d 498, 508 [2015]" ( Metro 8 Med. Equip., Inc. v. ELRAC, Inc. , 50 Misc 3d 140[A], 2016 NY Slip Op 50174[U][App Term, 1st Dept 2016] ).