EMA Acupuncture, P.C. v Travelers Ins. Co., 2016 NY Slip Op 50173(U)(App. Term 2d Dept. 2016)
“The affirmation of defendant’s attorney failed to describe or demonstrate “personal knowledge of the office procedures when a claimant failed to appear for [an EUO]” (American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [2013]). Nor did the affiant allege that she was assigned to the file and would have conducted the EUO if plaintiff’s principal had appeared”
The personal knowledge test could be met through Quality v. Interboro, Ortho-Med v. Interboro and Interboro v. Clennon. Those cases set forth a practice and procedure that will satisfy the practice and procedure test. The “I was assigned to the file” test may work in the First Department but will fail the Alrof and Bright Supply test.
