Vill. Med. Supply, Inc. v. Travco Ins. Co.

Full title: Village Medical Supply, Inc. as Assignee of Paola Dossa, Appellant, - v…

Court: SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Date published: Oct 30, 2015

2015 N.Y. Slip Op. 51599 (N.Y. App. Term 2015)

28 N.Y.S.3d 651

Opinion

2013-1410 K C

10-30-2015

Village Medical Supply, Inc. as Assignee of Paola Dossa, Appellant, - v. Travco Ins. Co., Respondent.

PESCE, P.J., ALIOTTA and SOLOMON, JJ.

PRESENT: :

Appeal from an order of the Civil Court of the City of New York, Kings County (William A. Viscovich, J.), entered May 2, 2013. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

ORDERED that the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without 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 plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. The Civil Court granted defendant's motion and denied plaintiff's cross motion.

In support of its motion, defendant submitted an affirmation executed by the attorney who was assigned to conduct the EUOs of plaintiff to establish that plaintiff had failed to appear. However, as plaintiff notes, defendant's motion papers do not unequivocally demonstrate that defendant's counsel was present on the dates of the scheduled EUOs. As a result, defendant's motion should have been denied because defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY 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 NY Slip Op 51123[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). Since plaintiff failed to show that it had appeared for either of the EUOs, plaintiff's cross motion for summary judgment was properly denied (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is modified by providing that defendant's motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: October 30, 2015