February 18, 2016

Metro 8 Med. Equip., Inc. v ELRAC, Inc. (2016 NY Slip Op 50174(U))

Headnote

The insurer failed to submit competent proof that the assignor missed scheduled IMEs. The Appellate Term, First Department, reversed the order granting summary judgment dismissing the provider's assigned no-fault action and denied the insurer's motion. The examiner's affidavit lacked probative value because the examiner maintained no records of nonappearances and did not explain the basis for recalling the assignor's absence approximately 18 months later. Under Gogos v Modell's Sporting Goods, Inc., the affidavit's proponent had to establish the basis of the affiant's knowledge. The scheduling vendor's affidavit alone could not establish personal knowledge of nonappearance, since routine recording of third-party statements did not guarantee their truth or reliability.

Reported in New York Official Reports at Metro 8 Med. Equip., Inc. v ELRAC, Inc. (2016 NY Slip Op 50174(U))

[*1]
Metro 8 Med. Equip., Inc. v ELRAC, Inc.
2016 NY Slip Op 50174(U) [50 Misc 3d 140(A)]
Decided on February 18, 2016
Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 18, 2016
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Schoenfeld, Shulman,, JJ.
571048/15

Metro 8 Medical Equipment, Inc., a/a/o Orenzo Harrell, Plaintiff-Appellant,

against

ELRAC, Inc. d/b/a Enterprise Rent-A-Car, Defendant-Respondent.


Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Lynn R. Kotler, J.), dated March 10, 2014, which granted defendant’s motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Lynn R. Kotler, J.), dated March 10, 2014, reversed, with $10 costs, and defendant’s motion denied.

Defendant-insurer’s motion for summary judgment dismissing the underlying first-party no-fault action should have been denied, inasmuch as it failed to submit competent proof of the assignor’s nonappearance at scheduled independent medical examinations (IME) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). The affidavit of defendant’s chiropractor/acupuncturist, who affirmatively stated that she does not maintain records of a claimant’s nonappearances at IMEs scheduled with her office, lacked probative value, since it failed to state the basis of her recollection, some 18 months later, that the assignor did not appear on the scheduled IME dates (see Westmed Physician, P.C. v State Farm Auto Ins. Co., 17 Misc 3d 133[A], 2007 NY Slip Op 52113[U] [App Term, 1st Dept 2007]). “It is the burden of the proponent of an affidavit to demonstrate the basis of the affiant’s knowledge . . . and here, defendant failed to meet that burden” (Gogos v Modell’s Sporting Goods, Inc., 87 AD3d 248, 254 [2011]).

Nor may personal knowledge of nonappearances at the IMEs be established solely by the affidavit of the IME scheduling vendor, since the “mere fact that the recording of [the] third-party statements [of non-appearances] by the [IME doctor] might be routine, imports no guarantee of the truth, or even reliability, of those statements” (Matter of Leon RR, 48 NY2d 117, 123 [1979]; cf. Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 508 [2015]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


I concur I concur I concur[*2]
Decision Date: February 18, 2016

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