Ortho Prods. & Equip., Inc. v Interboro Ins. Co., 2013 NY Slip Op 52054(U)(App. Term 2d Dept. 2013)
“It further established that its EUO scheduling letters had been timely mailed and that Mr. Robinson and Mr. Forbes had each failed to appear at either of their duly scheduled EUOs (see Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co., 36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012])”
(DISSENTING MEMORANDUM)
“For the reasons set forth in my dissent in Quality Psychological Servs., P.C. v Interboro Mut. Indem. Ins. Co. (36 Misc 3d 146[A], 2012 NY Slip Op 51628[U] [App Term, 2d, 11th & 13th Jud Dists 2012]), I find that defendant failed to submit evidence from someone with personal knowledge establishing the nonappearance of the assignor for the scheduled examinations under oath”
In this case, the “personal knowledge” was based upon an affidavit more detailed and circumspect than the affidavits circulating around in Alrof and Bright Care. The case is really an application of ATIC v. Lucas, regarding “personal knowledge.” While I would not say Alrof is dead, I would note that a properly detailed business practice affidavit will suffice to demonstrate the no show.
