Utica Acupuncture P.C. v. Amica Mutual Ins. Co., Slip Copy, 55 Misc.3d 126(A), 2017 WL 1053289 (Table), 2017 N.Y. Slip Op. 50331(U)
Insurer’s (doctor’s) affidavit in support of a no show defense must be sufficient and be based upon personal knowledge, describe a procedure and be able to affirmatively state there was a no show. Specifically, the Court stated:
Defendant motion for summary judgment dismissing the underlying first-party no-fault action should have been denied, inasmuch as it failed to submit competent proof of the assignor’s nonappearance at scheduled independent medical examinations (IMEs). The conclusory affirmation of defendant’s IME doctor lacked probative value, since she failed to adequately state the basis of her recollection, some two years later, that the assignor did not appear on the scheduled IME dates (see Five Boro Med. Equip., Inc. v Praetorian Ins. Co., 53 Misc 3d 138[A], 2016 NY Slip Op 51481[U] [App Term, 1st Dept 2016]; Village Med. Supply, Inc. v Travelers Prop. Cas. Co. of Am., 51 Misc 3d 126 [A], 2016 NY Slip Op 50339[U] [App Term, 1st Dept 2016]; Metro 8 Med. Equip., Inc. v ELRAC, Inc., 50 Misc 3d 140[A], 2016 NY Slip Op 50174[U][App Term, 1st Dept 2016]).