Acupuncture Healthcare Plaza I, P.C. v. Hertz Co.

Appellate Terms of the Supreme Court of New York

Acupuncture Healthcare Plaza I, P.C. v. Hertz Co.

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 3, 2016

Docket2016 NYSlipOp 50865(U)

StatusPublished

This text of Acupuncture Healthcare Plaza I, P.C. v. Hertz Co. (Acupuncture Healthcare Plaza I, P.C. v. Hertz Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Acupuncture Healthcare Plaza I, P.C. v. Hertz Co., (N.Y. Ct. App. 2016).

Pincite

Opinion

Acupuncture Healthcare Plaza I, P.C., as Assignee of TRAVIS BROWN, Appellant,

against

Hertz Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 9, 2013. 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, the Civil Court granted defendant's motion for summary judgment dismissing the complaint, finding that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs) and independent medical examinations (IMEs).

The branch of defendant's motion seeking summary judgment on the ground that plaintiff's assignor had failed to appear for EUOs should have been denied, as defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff's assignor (see Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Similarly, the branch of defendant's motion seeking summary judgment based upon the failure of plaintiff's assignor to appear for IMEs should have been denied, as neither of the doctors who had been scheduled to perform the IMEs demonstrated personal knowledge of the nonappearance of plaintiff's assignor for the IMEs (see Bright Med. Supply Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U]).

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

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

Decision Date: June 03, 2016

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Acupuncture Healthcare Plaza I, P.C., as Assignee of TRAVIS BROWN, Appellant,

against

Hertz Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 9, 2013. 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, the Civil Court granted defendant's motion for summary judgment dismissing the complaint, finding that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs) and independent medical examinations (IMEs).

The branch of defendant's motion seeking summary judgment on the ground that plaintiff's assignor had failed to appear for EUOs should have been denied, as defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff's assignor (see Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Similarly, the branch of defendant's motion seeking summary judgment based upon the failure of plaintiff's assignor to appear for IMEs should have been denied, as neither of the doctors who had been scheduled to perform the IMEs demonstrated personal knowledge of the nonappearance of plaintiff's assignor for the IMEs (see Bright Med. Supply Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U]).

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

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

Decision Date: June 03, 2016

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