ACTIVE CARE MEDICAL SUPPLY CORP v. METLIFE AUTO HOME (2018)

Supreme Court, Appellate Term, New York.

ACTIVE CARE MEDICAL SUPPLY CORP., as Assignee of Simmons, Joseph, Appellant, v. METLIFE AUTO & HOME, Respondent.

2015–2727 K C

Decided: May 25, 2018

PRESENT: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ

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.

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 dismissing the complaint is denied.

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

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