GL Acupuncture, P.C. v. Ameriprise Auto & Home, Slip Copy, 2016 WL 1189703 (Table), 2016 N.Y. Slip Op. 50377(U)
In this action by provider, defendant moved for summary judgment dismissing the complaint on the ground that defendant timely and properly denied the claims at issue based on plaintiff’s failure to appear for EUOs. The Court denied Defendant’s motion, Defendant appeals.
On the EUO no Show Defense, the Court said: Because defendant failed to submit proof by someone with personal knowledge attesting to the nonappearance of plaintiff for the EUOs in question, defendant’s motion for summary judgment dismissing the complaint should have been denied in its entirety (see Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).
On the Court’s Search of the Record and Subsequent ruling for Plaintiff: Defendant contends that the court erred in searching the record and granting summary judgment to plaintiff upon the first, seventh and eighth causes of action. A court “may search the record and grant summary judgment in favor of a nonmoving party only with respect to a cause of action or issue that is the subject of motions before the court . . . . In this case, the [Civil] Court erred in searching the record, since [plaintiff’s prima facie case] was not the subject of the motion before it” (Geoffrey S. Matherson & Assoc. v Siegler, 305 AD2d 457, 458 [2003] [internal quotation marks and citations omitted]).