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[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). 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”
2 Responses
Did you read the whole order to see that This was a successful appEal for hertz?
My point is this: We all make mistakes. I am guilty myself – look at Interboro v. Perez. I learned from that mistake and we have POM’s on EUO letters to avoid the lack of objective evidence issue. Regarding no-shows, Quality v. Interboro – my case- spells out how to obtain “the other means” to prevail on that issue. But how come firms do not learn from their mistakes? The lack of personal knowledge on EUO no-shows is endemic to one firm. Rybak has a point on one of his comments, and I hate to admit that since I am always at the App. Term or App. Division with him.