IME excuse without personal knowledgeFebruary 21, 2020

Medcare Supply, Inc. v Global Liberty Ins., 2020 NY Slip Op 50231(U) (1st Dept. 2020)

” Defendant’s moving papers demonstrated, prima facie, that defendant had timely mailed both the IME scheduling letters and the denial of claim form (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and that plaintiff’s assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In opposition, plaintiff proffered an affirmation by its assignor’s counsel, who did not assert that she possessed personal knowledge of the facts. Consequently, plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]). “

In this case, the attorney for the Assignor signed an affirmation explaining why her client failed to attend the IMEs. The court found this insufficient. Perhaps, Plaintiff would have had better luck in arbitration where the rules of evidence do not apply?