November 1, 2016

Omphil Care, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51607(U))

Headnote

The court considered the case of Omphil Care, Inc. as Assignee of Paolo Poponneau v Allstate Insurance Company, in which the plaintiff was seeking first-party no-fault benefits. The main issue was whether the provider failed to appear for scheduled examinations under oath, which the defendant used as grounds for dismissing the complaint. The Civil Court initially denied the plaintiff's motion for summary judgment and granted the defendant's cross motion. However, the Appellate Term, Second Department modified the order and denied the defendant's cross motion for summary judgment dismissing the complaint. The holding of the case was that the defendant's cross motion for summary judgment dismissing the complaint was denied.

Reported in New York Official Reports at Omphil Care, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51607(U))

Omphil Care, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51607(U)) [*1]

Omphil Care, Inc. v Allstate Ins. Co.

2016 NY Slip Op 51607(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This opinion is uncorrected and will not be published in the printed Official Reports.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.
2013-2348 Q C

Omphil Care, Inc., as Assignee of PAOLO POPONNEAU, 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 16, 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 failed to appear for duly scheduled examinations under oath. By order entered September 16, 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