Key Takeaway
Appellate Term allows defendant second opportunity to cure defective summary judgment papers with supplemental physician affidavit in no-fault insurance case.
Riu Chiropractic, P.C. v AutoOne Ins. Co., 2010 NY Slip Op 50653(U)(App. Term 2d Dept. 2010)
“In opposition to plaintiff’s motion for summary judgment and in support of its cross motion for summary judgment, defendant submitted an affidavit by its litigation specialist which established that the letters scheduling the IMEs had been timely sent pursuant to defendant’s standard office practice or procedure designed to ensure that such items were properly addressed and mailed (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 ; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 ). Thereafter, defendant submitted a supplemental affirmation, pursuant to the instructions of the Civil Court, from its examining physician. The physician stated therein that plaintiff’s assignor had failed to appear for scheduled IMEs. As a result, defendant established its prima facie case. Accordingly, the judgment is reversed, the order entered February 3, 2009 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the [*2]complaint is granted.”
What would happen if instead of getting an explicit instruction to cure the papers, the defendant placed this affidavit in a reply affirmation, which the plaintiff did not have a chance to comment upon?
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