Opinion
No. 2012–575 K C.
2014-05-29
Appeal from an order of the Civil Court of the City of New York, Kings County (Nancy M. Bannon, J.), entered November 15, 2011. The order denied defendant's motion for summary judgment dismissing the complaint.
Present: PESCE, P.J., ALIOTTA and SOLOMON, JJ.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that defendant had timely and properly denied the claims at issue based on plaintiff's failure to appear for duly scheduled examinations under oath (EUOs). The Civil Court denied defendant's motion.
Because defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question, defendant's motion was properly denied ( see Alrof, Inc. v. Safeco Natl. Ins. Co., 39 Misc.3d 130 [A], 2013 N.Y. Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]; Bright Med. Supply Co. v. IDS Prop. & Cas. Ins. Co., 40 Misc.3d 130[A], 2013 N.Y. Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013] ).
Accordingly, the order is affirmed.