Active Care Med. Supply Corp. v. Metlife Auto & Home

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 25, 2018
• Docket: 2018 NYSlipOp 50772(U)
• Status: Published

Opinion

Active Care Medical Supply Corp., as Assignee of Simmons, Joseph, Appellant,

against

Metlife Auto & Home, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman and Nathan Shapiro of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered September 9, 2015. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Plaintiff correctly argues on appeal that defendant failed to submit proof by someone with personal knowledge of plaintiff's assignor's nonappearance at an initial and follow-up EUO (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Accordingly, the order is reversed and defendant's motion for summary judgment [*2]dismissing the complaint is denied.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 25, 2018