Affidavit issues once again invade Hertz’ motion practice

Alleviation Med. Servs., P.C. v Hertz Co., 2016 NY Slip Op 50399(U)(App. Term 2d Dept. 2016)

Yesterday, we read about the partner who could not assert personal knowledge of the EUO no show in their affidavit.  Today, we read about the healthcare practitioner whose affidavit was unpersuasive.

“Plaintiff correctly argues that defendant’s cross motion should have been denied. In support of its claim that plaintiff’s assignor had failed to appear for independent medical examinations (IMEs), defendant submitted an affirmation from the doctor who was to perform the orthopedic IMEs and an affidavit from the chiropractor who was to perform the chiropractic and acupuncture IMEs. The doctor and the chiropractor each failed to demonstrate by personal knowledge (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), or by any other appropriate means (see e.g. 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 Dept, 2d, 11th & 13th Jud Dists 2012]), the nonappearance of plaintiff’s assignor for the IMEs”