W & Z Acupuncture, P.C. v Amex Assur. Co. 2009 NY Slip Op 51732(U)(App. Term 2d Dept. 2009)
“In opposition to plaintiff’s motion and in support of its cross motion for summary judgment, defendant submitted the affirmation of a partner in the law firm retained by defendant to conduct plaintiff’s EUO. Counsel alleged facts sufficient to establish that plaintiff’s owner had failed to appear at counsel’s law office for duly scheduled EUOs”
This case is interesting because a supervisor at a law firm may lay the appropriate foundation to satisfy the Fogel personal knowledge requirement , even though the supervisor had nothing to do with the scheduling and non appearances at the attempted EUOs. Again, a well drafted and copiously detailed affidavit, similar to that of a mailing affidavit, is a prerequisite to utilizing this method to demonstrate the Fogel personal knowledge requirement.
