Progressive Advanced Insurance Co. v. Gwendolyn McAdam, et al., defendants, Sovereign Acupuncture, P.C., 2016 WL 2337947
Insurance company brought a DJ action against a medical provider alleging that the accidents were intentionally staged and fraudulent. Appellate Division reversed the lower court stating as follows:
The uncertified police accident reports submitted by the plaintiff were not admissible (see Nationwide Gen. Ins. Co. v. Bates, 130 AD3d at 796; Sanchez v. Taveraz, 129 AD3d 506, 506; Adobea v. Junel, 114 AD3d 818, 820; Hazzard v. Burrowes, 95 AD3d 829, 831; cf. Caldara v. Utica Mut. Ins. Co., 130 AD3d 665, 666). The plaintiff submitted an affidavit of its medical representative, but that representative relied largely on inadmissible evidence, and lacked personal knowledge of the facts surrounding the two collisions. Thus, the plaintiff failed to establish, prima facie, through admissible evidence, that the subject collisions were deliberately caused to fraudulently obtain insurance benefits (see Nationwide Gen. Ins. Co. v. Bates, 130 AD3d at 796; cf. State Farm Mut. Auto. Ins. Co. v Laguerre, 305 A.D.2d 490, 491). Moreover, the plaintiff failed to establish, prima facie, that McAdam and Fedee were in breach of their insurance contracts with the plaintiff because several defendants failed to attend their scheduled EUOs. The plaintiff failed to submit proof of mailing or evidence from someone with personal knowledge of the mailings of the EUO requests (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721; New York & Presbyt. Hosp. v. Allstate Ins. Co., 29 AD3d 547, 547–548).