March 21, 2013

Alrof, Inc. v Safeco Natl. Ins. Co. (2013 NY Slip Op 50458(U))

Headnote

The court considered the case of Alrof, Inc. v Safeco Natl. Ins. Co., in which the plaintiff, Alrof, Inc., sought to recover first-party no-fault benefits from the defendant, Safeco National Insurance Company. The main issue before the court was whether the defendant's argument that the plaintiff failed to appear at a properly noticed examination under oath (EUO) was supported by admissible evidence. The court held that a conclusory statement from an attorney lacking personal knowledge was insufficient to support the defendant's cross motion for summary judgment. Additionally, the court found that an alleged noncompliance with an EUO must be established by admissible evidence. Ultimately, the court affirmed the order granting the plaintiff's motion for summary judgment and denying the defendant's cross motion.

Reported in New York Official Reports at Alrof, Inc. v Safeco Natl. Ins. Co. (2013 NY Slip Op 50458(U))

Alrof, Inc. v Safeco Natl. Ins. Co. (2013 NY Slip Op 50458(U)) [*1]

Alrof, Inc. v Safeco Natl. Ins. Co.

2013 NY Slip Op 50458(U) [39 Misc 3d 130(A)]

Decided on March 21, 2013

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 21, 2013

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

PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-2756 K C.

Alrof, Inc. as Assignee of JONATHAN ROSARIO, Respondent, —
against
Safeco National Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered January 20, 2010. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted an affirmation from its attorney who stated that upon review of his office file and “knowledge of his office practices and procedures,” plaintiff failed to appear at a properly noticed examination under oath (EUO).

The affidavit of defendant’s attorney was of no probative value as it lacked personal knowledge of the nonappearance of plaintiff. It is well settled that a motion for summary judgment must be supported by an affidavit from a person having knowledge of the facts (CPLR [*2]3212 [b]). A conclusory statement from an attorney which fails to demonstrate his or her personal knowledge is insufficient to support summary judgment (Zuckerman v City of New York, 49 NY2d 557 [1980]; Piltser v Donna Lee Mgt. Corp., 29 AD3d 973 [2006]; Gomez v Sammy’s Transp., Inc., 19 AD3d 544 [2005]; Spearmon v Times Sq. Stores Corp, 96 AD2d 552 [1983]). To the extent our prior decisions (see e.g. W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists 2010]) would require a different result, they should no longer be followed.

While a medical provider is required to submit to examinations under oath when requested by the insurer (Insurance Department Regulations [11 NYCRR] § 65-1.1), as a condition precedent to payment of a claim, their alleged noncompliance must be established by admissible evidence (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Based upon the foregoing, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: March 21, 2013