October 5, 2016

Compas Med., P.C. v ELRAC, Inc. (2016 NY Slip Op 51439(U))

Headnote

The defendant's IME doctor failed to establish personal knowledge of the assignor's nonappearance at the scheduled examinations. The defendant sought summary judgment dismissing the provider's assigned no-fault action on the ground that the assignor failed to attend duly scheduled IMEs. Although the doctor scheduled to perform the examinations submitted an affirmation, it did not establish the requisite personal knowledge of nonappearance. The Appellate Term, Second Department, therefore found that the defendant had not demonstrated entitlement to judgment as a matter of law, reversed the order granting dismissal, and denied its summary judgment motion.

Reported in New York Official Reports at Compas Med., P.C. v ELRAC, Inc. (2016 NY Slip Op 51439(U))

[*1]
Compas Med., P.C. v ELRAC, Inc.
2016 NY Slip Op 51439(U) [53 Misc 3d 136(A)]
Decided on October 5, 2016
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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 5, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-637 Q C

Compas Medical, P.C., as Assignee of BIANCA LOUBEAU, Appellant,

against

ELRAC, Inc., Respondent.


Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered March 5, 2014. 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, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). Plaintiff appeals from an order of the Civil Court which granted defendant’s motion.

While defendant submitted an affirmation from the doctor who was scheduled to perform the IMEs, plaintiff correctly argues on appeal that the doctor did not establish that he possessed personal knowledge of the nonappearance of plaintiff’s assignor. Therefore, defendant failed to establish its entitlement, as a matter of law, to judgment dismissing the complaint on the ground proffered in its moving papers (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]).

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: October 05, 2016

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