Sutphin Complete Med. Care v Hereford Ins. Co., 2016 NY Slip Op 50763(U)(App. Term 1st Dept. 2016)
“the record raises triable issues as to whether the assignor failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 ; Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126[A], 2016 NY Slip Op 50339[U] [App Term, 1st Dept 2016]; Metro 8 Med. Equip., Inc. v ELRAC, Inc., 50 Misc 3d 140[A], 2016 NY Slip Op 50174[U] [App Term, 1st Dept 2016]).”
The triable issue of facts mirror what we saw starting in the Westmed v. State Farm case: how can somebody aver to an act performed 12 months ago without establishing a foundation for the fact? This Court seems to be running with the line of cases unique to this court.