Alrof, Inc. v Safeco Natl. Ins. Co., 2013 NY Slip Op 50458(U)(App. Term 2d Dept. 2013)
“In support of its cross motion, defendant submitted an affirmation from its attorney who stated that upon review of his office file and “knowledge of his office practices and procedures,” plaintiff failed to appear at a properly noticed examination under oath (EUO).”
…
“The affidavit of defendant’s attorney was of no probative value as it lacked personal knowledge of the nonappearance of plaintiff. It is well settled that a motion for summary judgment must be supported by an affidavit from a person having knowledge of the facts (CPLR [*2]3212 [b]). A conclusory statement from an attorney which fails to demonstrate his or her personal knowledge is insufficient to support summary judgment…. To the extent our prior decisions (see e.g. W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists 2010]) would require a different result, they should no longer be followed.”
“While a medical provider is required to submit to examinations under oath when requested by the insurer (Insurance Department Regulations [11 NYCRR] § 65-1.1), as a condition precedent to payment of a claim, their alleged noncompliance must be established by admissible evidence (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).”
5 Responses
This decision is of great relief. When my client doesn’t show for an EUO with you Jason, I can argue that you did not actually see him not show up. If you did not see him, you cannot possibly say he was not there.
Obviously the Plaintiff’s bar has finally gotten back into the game of throwing money at politicians. For the past 4 or 5 years its only been insurance company money.
“This is New York. Politics is all about the F’ing money.”
The Captain was going to run for office as an independent. But I asked myself for a bribe to make sure that I would not run against myself.
Good for the plaintiff the bar. The defense has the DFS in their pocket.
Alan, you are so correct!!!! In my opinion, the DFS is bought and paid for by the insurance industry. How else can one explain why they go after doctors but ignore the abuses by certain insurance companies that that shall go nameless … hint: they employ a lizard in their commercials.
I heard some nut case sued to compel them to undertake a mandatory market conduct investigation of a major insurance company (hint the insurance company bribed a judge in Illinois to the tune of 3 plus million dollars)
The insurance law is clear. “Shall” … every three years. In fact the then Superintendent had to ask permission and receive permission upon good cause shown to extend it to 5 years.
In this case it was beyond 5 years and no permission was asked.
Curiously the Court said so what and dismissed the action.