Index No. CV-719638-23/RI. Civil Court of the City of New York, Richmond County. Decided February 21, 2025.
ROBERT J. HELBOCK, JR., J.
The Decision/Order on the Defendant’s Motion to reargue the motion for summary Judgment is as follows:
The plaintiff, MEDICAL SUPPLY OF NY SERVICES, INC. (the “Plaintiff”), as assignee of FELIX JUMA DIAZ (the “Assignor”) commenced this action against STATE FARM MUTUAL AUTO INS. CO. (the “Defendant”) to recover assigned first-party No-Fault benefits for medical treatment provided to the Assignor on May 17, 2023. The Defendant moved for summary judgment based upon Assignor’s failure to attend two duly scheduled Examinations Under Oath (“EUOs”) on September 8, 2023.
On March 27, 2024, this Court denied the Defendant’s motion, finding there was an issue of fact regarding the Assignor’s failure to attend the EUOs. The Defendant subsequently filed the instant motion on May 2, 2024, for leave to reargue the motion for summary judgment on the basis that the Court overlooked or misapprehended matters of fact or law in its prior decision.
Discussion
A motion for leave to reargue shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion. CPLR §2221. An affidavit or affirmation from an attorney attesting the nonappearance of a plaintiff at an examination under oath (EUO) is of no probative value if it lacks personal knowledge of the plaintiff’s nonappearance (see Alrof, Inc. v. Safeco Nat. Ins. Co., 39 Misc 3d 130 [A]).
The elements of a proper attorney affidavit include a statement of personal knowledge that the attorney was present in the office to conduct the EUO; that no one affiliated with the witness appeared; and that had the witness appeared, the affirmant would have conducted the EUO.
In this matter, the affidavit of Richard C. Aitken Esq., the Defendant’s attorney, does not state that he was present at the time the EUO was scheduled to take place. The affidavit only states that the attorney “placed a default statement on the record.” Such a statement could have been made virtually, and the act of placing the statement on the record does not mean the deponent was physically present at the scheduled location to personally observe the non-appearance. Without stating the attorney was present to observe the non-appearance, the declaration is nothing more than a hearsay conclusory statement.
Furthermore, the transcript of the EUO statement itself is not admissible evidence for a summary judgment motion without a proper foundation (Charles Deng Acupuncture P.C. v. Titan Insurance Co., 74 Misc 3d 137(A)). Without such a foundation, the document remains hearsay.
Decision
For these reasons, the Court finds that the affidavit of Mr. Aitken was not overlooked when determining the prior motion because the attorney affidavit did not establish the attorney was present at the time scheduled for the EUO.
Accordingly, Defendant’s motion to reargue is DENIED. The Court’s decision dated March 27, 2024, denying the Defendant’s motion for summary judgment stands.
This is the Decision and Order of the Court.