City Care Acupuncture, P.C. v Ameriprise Ins. Co., 2016 NY Slip Op 51036(U)(App. Term 2d Dept. 2016)
“[p]laintiffs’ assignor had failed to appear for an examination under oath (EUO) which had been duly scheduled for June 1, 2012; that although plaintiffs’ assignor had appeared for an EUO on June 15, 2012, there was a mutual agreement to reschedule that EUO; and that plaintiffs’ assignor had failed to appear on July 9, 2012, the date of the rescheduled EUO. Plaintiffs cross-moved for summary judgment. By order entered October 20, 2014, the Civil Court granted defendant’s motion and denied plaintiffs’ cross motion.
“[O]n appeal, plaintiffs’ arguments are limited to what occurred when plaintiffs’ assignor appeared for the second scheduled EUO on June 15, 2012. Contrary to plaintiffs’ contention, defendant’s moving papers establish that, although plaintiffs’ assignor appeared for this EUO, there was a mutual agreement to reschedule it, at the assignor’s request, to enable plaintiffs’ assignor’s counsel to attend the EUO (cf. DVS Chiropractic, P.C. v Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]).”
This one makes sense. No show for the first. Shows for second but reschedules. Misses rescheduled date. Case tossed.
But I cannot help but but quote this line: “On appeal, plaintiffs’ arguments are limited to what occurred when plaintiffs’ assignor appeared for the second scheduled EUO on June 15...” I cannot help but think if the “partner affirmation” was addressed as a reason for denying summary judgment, the result would be different. OOh…… Query: Is it malpractice for a plaintiff not to address the partner affirmation as a basis for denial of defendant’s application for summary judgment?
