November 1, 2016

Omphil Care, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51606(U))

Headnote

The relevant facts of the case involved Omphil Care, Inc., as the assignee of Paul Fabiola, seeking to recover assigned first-party no-fault benefits from Allstate Insurance Company. Plaintiff moved for summary judgment, while defendant cross-moved for summary judgment, arguing that the plaintiff had failed to appear for duly scheduled examinations under oath. The Civil Court denied plaintiff's motion and granted defendant's cross motion. The main issue decided was whether the defendant's cross motion for summary judgment dismissing the complaint should be granted. The holding of the case was that the order was modified by providing that defendant's cross motion for summary judgment dismissing the complaint is denied.

Reported in New York Official Reports at Omphil Care, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51606(U))

Omphil Care, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51606(U)) [*1]

Omphil Care, Inc. v Allstate Ins. Co.

2016 NY Slip Op 51606(U) [53 Misc 3d 146(A)]

Decided on November 1, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 1, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2347 Q C

Omphil Care, Inc., as Assignee of PAUL FABIOLA, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered September 17, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath. By order entered September 17, 2013, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.

For the reasons stated in Omphil Care, Inc., as Assignee of Paul Fabiola v Allstate Ins. Co. (___ Misc 3d ___, 2016 NY Slip Op ____ [appeal No. 2013-2290 Q C], decided herewith), the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: November 01, 2016