Village Medical Supply, Inc., v. Travelers Property Casualty Company of America, Slip Copy, 2016 WL 1092083 (Table), 2016 N.Y. Slip Op. 50339(U).
Defendant attempted to use a recorded statement and an affidavit of the doctors to prove a no show at an IME. The Court dicta is very good:
The affidavits of defendant’s IME doctors lacked probative value, since they failed to state the basis of their recollection, some 12 months later, that the assignor did not appear on the scheduled IME dates (see Metro 8 Med. Equip., Inc. v ELRAC, Inc. d/b/a Enterprise Rent-A-Car, — Misc 3d –, 2016 NY Slip Op 50174[U][App Term, 1st Dept]). Nor may personal knowledge of nonappearances at the IMEs be established in sole reliance on the affidavit of the IME scheduling vendor, since the “mere fact that the recording of [the] third-party statements [of non-appearances] by the [IME doctor] might be routine, imports no guarantee of the truth, or even reliability, of those statements” (Matter of Leon RR, 48 NY2d 117, 123 [1979]; Metro 8 Med. Equip., Inc., 2016 NY Slip Op 50174[U], supra; cf. Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 508 [2015]
The Court also attacked the doctors affidavits that the insurer attempted to use to prove the No Shows.