Key Takeaway
Court ruling on EUO defense failure when law firm partner's affirmation lacked personal knowledge of plaintiff's nonappearance at examinations under oath
Alleviation Med. Servs., P.C. v Hertz Co., 2016 NY Slip Op 50371(U)(App. Term 2d Dept. 2016)
**I am sure this was not Rubin, Fiorella’s Hertz case** By looking at the terms “partner”, “Alrof” and “Bright Supply”, I suspect we can figure out who represented Hertz in this case…
“Contrary to defendant’s contention, the affirmation by a partner in the law firm retained by defendant to conduct examinations under oath (EUOs) of plaintiff did not satisfy defendant’s burden of presenting proof by someone with personal knowledge of the nonappearance of plaintiff at the EUOs in question (see Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130, 2013 NY Slip Op 50458 ; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130, 2013 NY Slip Op 51123 ). As a result, defendant failed to establish, as a matter of law, defendant’s entitlement to summary judgment dismissing the complaint. However, since plaintiff failed to show that it had appeared for either of the EUOs, plaintiff’s motion for summary judgment should have been denied, as plaintiff did not establish that the denial of claim form was conclusory, vague or without merit as a matter of law”
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