American Transit Insurance v. Jaga Medical Services, P.C.

Judgment, Supreme Court, Bronx County (John A. Barone, J.), entered July 12, 2013, which, to the extent appealed from, declared that defendants-appellants were not entitled to no-fault benefits as a result of a motor vehicle accident due to the claimant’s failure to appear for scheduled examinations under oath (EUO), unanimously reversed, on the law, without costs, the underlying motion for summary judgment denied, and the judgment vacated.

The reason for the EUO request is a fact essential to justify opposition to plaintiffs summary judgment motion (see American Tr. Ins. Co. v Curry, 45 Misc 3d 171, 174-175 [Sup Ct, NY County 2013]), and such fact is exclusively within the knowledge and control of the movant. Further discovery on plaintiffs handling of the claim so as to determine whether, inter alia, the EUOs were timely and properly requested is also essential to justify opposition. Concur — Mazzarelli, J.P., Renwick, Manzanet-Daniels and Clark, JJ.