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Optimal Well-Being Chiropractic, P.C. v Hertz Co.
2013 NY Slip Op 50902(U) [39 Misc 3d 147(A)]
Decided on May 22, 2013
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on May 22, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and SOLOMON, JJ
2011-2352 K C.

Optimal Well-Being Chiropractic, P.C. as Assignee of ANDRE CLIFFORD, Respondent, —

against

Hertz Co., Appellant.


Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), dated June 30, 2011. The order, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the complaint.


ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff's motion for summary judgment and defendant's cross motion for summary judgment dismissing the complaint, stating that the only issue for trial would be whether plaintiff's assignor had appeared for examinations under oath. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint. Since defendant did not submit evidence from anyone with personal knowledge of plaintiff's assignor's nonappearances, defendant's cross motion for summary judgment dismissing the complaint was properly denied (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Rios and Solomon, JJ., concur.
Decision Date: May 22, 2013