Triable issue of fact as to non-appearance?July 2, 2019
Island Life Chiropractic, P.C. v State Farm Mut. Auto. Ins. Co., 2019 NY Slip Op 51038(U)(App. Term 2d Dept. 2019)
“In opposition to defendant’s motion for summary judgment, plaintiff’s owner submitted an affidavit in which he stated that he had called defendant to reschedule each EUO and that he left messages for defendant’s investigator, but that plaintiff was not contacted by defendant in response to the messages. In response, defendant did not provide an affidavit from anyone with personal knowledge, but rather relied upon an affirmation from its counsel, asserting that plaintiff’s owner’s affidavit was too vague and that plaintiff was attempting to raise a feigned issue of fact. On this record, we find that defendant failed to demonstrate, as a matter of law, its entitlement to summary judgment dismissing the complaint “
So this case should now devolve into a deposition of the provider to find out what number he called and when called. Of course, we want the phone records to show that indeed (s)he did call. And if the evidence is not there? Wire fraud? Perjury? Civil Rico? The imagination knows no boundaries.
Alas Lifespan Wellness, Pt, P.C. v Citywide Auto Leasing, Inc., 2019 NY Slip Op 51040(U)(App. Term 2d Dept. 2019)
“Plaintiff failed to raise an issue of fact in opposition to defendant’s motion, as a phone call from the assignor on the day of the scheduled IME asking to adjourn the IME, without more, is insufficient to show that an issue of fact exists as to whether the IME was mutually rescheduled”
This is a thorny area of law. What is a reasonable cancellation? We all like bright line rules. These make Article 75’s possible, Civil appeals more certain and allow a better degree of predictability. Like many, I do not like when I cannot determine the right answer from an other common set of facts.