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Alrof, Inc. As Assignee of Jonathan Rosario, Respondent v. Safeco National Insurance Company

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


March 21, 2013

ALROF, INC. AS ASSIGNEE OF JONATHAN ROSARIO, RESPONDENT,
v.
SAFECO NATIONAL INSURANCE COMPANY, APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered January 20, 2010.

Alrof, Inc. v Safeco Natl. Ins. Co.

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 21, 2013

PRESENT: PESCE, P.J., WESTON and RIOS, JJ

The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

In support of its cross motion, defendant submitted an affirmation from its attorney who stated that upon review of his office file and "knowledge of his office practices and procedures," plaintiff failed to appear at a properly noticed examination under oath (EUO).

The affidavit of defendant's attorney was of no probative value as it lacked personal knowledge of the nonappearance of plaintiff. It is well settled that a motion for summary judgment must be supported by an affidavit from a person having knowledge of the facts (CPLR 3212 [b]). A conclusory statement from an attorney which fails to demonstrate his or her personal knowledge is insufficient to support summary judgment (Zuckerman v City of New York, 49 NY2d 557 [1980]; Piltser v Donna Lee Mgt. Corp., 29 AD3d 973 [2006]; Gomez v Sammy's Transp., Inc., 19 AD3d 544 [2005]; Spearmon v Times Sq. Stores Corp, 96 AD2d 552 [1983]). To the extent our prior decisions (see e.g. W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Points of Health Acupuncture, P.C. v Lancer Ins. Co., 28 Misc 3d 133[A], 2010 NY Slip Op 51338[U] [App Term, 2d, 11th & 13th Jud Dists 2010]) would require a different result, they should no longer be followed.

While a medical provider is required to submit to examinations under oath when requested by the insurer (Insurance Department Regulations [11 NYCRR] § 65-1.1), as a condition precedent to payment of a claim, their alleged noncompliance must be established by admissible evidence (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Based upon the foregoing, the order is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: March 21, 2013

20130321

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