Opinion
No. CV52560/11.
08-13-2014
MEDCARE SUPPLY INC. a/a/o David West, Plaintiff, v. TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, Defendant.
Gary Tsirelman P.C, Brooklyn (Stephen Gurfinkel of counsel), for plaintiff. Law Offices of Karen C. Dodson, New York (Saba S. Chughtai of counsel), for defendant.
Gary Tsirelman P.C, Brooklyn (Stephen Gurfinkel of counsel), for plaintiff.
Law Offices of Karen C. Dodson, New York (Saba S. Chughtai of counsel), for defendant.
Opinion
GERALD LEBOVITS, J.
Plaintiff brought this no-fault-benefits action seeking reimbursement for $1346.76 for medical services rendered to assignor, David West. Plaintiff submitted to defendant two bills for dates of service June 27, 2011, and July 15, 2011. Defendant denied the claim on the basis that the assignor failed to appear for two scheduled examinations under oath (EUOs) and that verification remained outstanding.
Defendant moves for summary judgment under CPLR 3212 on the ground that the assignor failed to appear for two scheduled EUOS and, thus, that plaintiff breached a condition precedent to coverage. Plaintiff's most persuasive argument in opposition is that defendant failed to prove the assignor's nonappearance for the EUOs. Plaintiff argues that Aloy O. Ibuzor's affirmation is insufficient because, plaintiff argues, he has no personal knowledge of the assignor's nonappearance for the EUOs. (Garfunkel Affirmation, July 9, 2013, at ¶ ¶ 15–16.)
Defendant proved that it timely and properly mailed the EUO letters to the assignor. Defendant also proved that it timely and properly mailed the denials, NF–10s. Defendant, however, did not prove that the assignor failed to appear for the EUOs on June 27, 2011, and July 15, 2011.
Aloy O. Ibuzor's affirmation does not comport with an Appellate Term, Second Department, decision: Alrof, Inc. v. Safeco Natl. Ins. Co., 39 Misc.3d 130 [A], *1, 2013 N.Y. Slip Op 50458[U], *1 [App Term 2d Dept, 11th & 13th Jud Dists Mar. 21, 2013].
In Alroft, the court determined that the “affidavit of defendant's attorney was of no probative value as it lacked personal knowledge of the nonappearance of plaintiff. (Alroft, 39 Misc.3d 130[A], at *1, 2013 N.Y. Slip Op 50458[U], at *1.) The court held that “[i]t is well settled that a motion for summary judgment must be supported by an affidavit from a person having knowledge of the facts. (CPLR 3212[b].) A conclusory statement from an attorney which fails to demonstrate his or her personal knowledge is insufficient to support summary judgment.” (Id. )
The proof the Alroft court considered was an affidavit from Vincent F. Gerbino, a partner at Bruno, Gerbino & Soriano, LLP. In his affidavit, Gerbino states that he has “personal knowledge of the facts at issue ... based on [his] review of the file and [his] knowledge of office practices and procedures.” (Affirmation in Opposition, Exhibit 1, Gerbino Affidavit, Mar. 23, 2009, at ¶ 3 .) Gerbino states that the “office mailed correspondence to Jonathan Rosario [the assignor] notifying that he was scheduled for an EUO on July 18, 2008, at 10:00 AM. He did not appear on this date. Therefore, ... this office ... re-scheduled ... [the] EUO on July 30, 2008, at 1:00PM.” (Affirmation in Opposition, Exhibit 1, Gerbino Affidavit, Mar. 23, 2009, at ¶ 3.) Gerbino thus states that “Jonathan Rosario failed to appear at both ... EUO's.” (Affirmation in Opposition, Exhibit 1, Gerbino Affidavit, Mar. 23, 2009, at ¶ 3.)
Since Alroft, the court revisited the issue of the sufficiency of an attorney's affirmation to prove nonappearance at EUOs in Bright Med. Supply Co. v. IDS Prop. & Cas. Ins. Co. (40 Misc.3d 130[A], *1, 2013 N.Y. Slip Op 51123[U], *1 [App Term 2d Dept 11th & 13th Jud Dists July 5, 2013].) In Bright Medical, the court held the court below properly denied defendant's summary-judgment motion because “defendant failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff for the EUOs in question.” (Id. at *1, 2013 N.Y. Slip Op 51123[U], *1, citing Alrof, 39 Misc.3d 130[A], *1, 2013 N.Y. Slip Op 50458 [ U], *1.)
Since Bright Medical, the court determined that the affirmation of defendant's attorney “who was present in his office to conduct plaintiff's EUO on the scheduled dates ... was sufficient to establish that plaintiff failed to appear.” (Natural Therapy Accupuncture, P.C. v. State Farm Mut. Ins. Co., 42 Misc.3d 137[A], *1, 2014 N.Y. Slip Op 50134[U], *1 [App Term 2d Dept 11th & 13th Jud Dists Jan. 28, 2014].)
Ibuzor's affirmation is insufficient, under Alroft and its progeny, to prove the assignor's nonappearance for the two EUOs. Ibuzor has no personal knowledge of the assignor's nonappearance at the EUOs. Ibuzor states the following: “I was assigned to conduct the Examination Under Oath of David West. As such, I have personal knowledge of the facts and circumstances set forth herein .... a scheduling letter was sent from this office to David West in care of [the assignor's attorney] Andrew Hirschhorn, Esq.” (Ibuzor Affirmation, Aug. 3, 2011, at ¶ 4.) Ibuzor states that on June 27, 2011, “neither David West nor anyone else on his behalf appeared for the EUO.” (Ibuzor Affirmation, Aug. 3, 2011, at ¶ 5.) The EUO was rescheduled for July 15, 2011. (Ibuzor Affirmation, Aug. 3, 2011, at ¶ 6.) On July 15, 2011, “neither David West nor any on else [sic] on his behalf appeared for the scheduled EUO.” (Ibuzor Affirmation, Aug. 3, 2011, at ¶ 7.) At no point does Ibuzor state that he was present in the office on June 27, 2011, and July 15, 2011. Even though he was assigned to conduct the assignor's EUO, it is unclear that had the assignor appeared whether Ibuzor, or another attorney, would have conducted the assignor's EUO.
Like the attorney in Alroft, Ibuzor explains in conclusory language that the assignor failed to appear for EUOs. Ibuzor does not explain his basis for knowing that the assignor failed to appear for the EUOs.
At trial, defendant will have to prove the assignor's nonappearance for the EUOs scheduled for June 27, 2011, and July 15, 2011.
Defendant's motion is denied.
This is the court's decision and order.