VILLAGE MEDICAL SUPPLY, INC., A/A/O TYSHAAN JAMES, plf-app, TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, def-res

16-071. VILLAGE MEDICAL SUPPLY, INC., A/A/O TYSHAAN JAMES, plf-app, TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, def-res — Order (Lizbeth Gonzalez, J.), entered June 20, 2011, reversed, with $10 costs, and defendant's motion denied.

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16-071. VILLAGE MEDICAL SUPPLY, INC., A/A/O TYSHAAN JAMES, plf-app, TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, def-res — Order (Lizbeth Gonzalez, J.), entered June 20, 2011, reversed, with $10 costs, and defendant’s motion denied.

Defendant insurer’s 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 (IME) (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). 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]).

VILLAGE MEDICAL SUPPLY, INC., A/A/O TYSHAAN JAMES, plf-app, TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, def-res

16-071. VILLAGE MEDICAL SUPPLY, INC., A/A/O TYSHAAN JAMES, plf-app, TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA, def-res — Order (Lizbeth Gonzalez, J.), entered June 20, 2011, reversed, with $10 costs, and defendant's motion denied.

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