December 13, 2019

Omphil Care, Inc. v GEICO Ins. Co. (2019 NY Slip Op 52065(U))

Headnote

The case involved a dispute between Omphil Care, Inc., as the assignee of Shereen Small, and GEICO Ins. Co. over recovering assigned first-party no-fault benefits. GEICO had filed a motion for summary judgment, claiming that Omphil Care had failed to appear for examinations under oath (EUOs). The Civil Court of New York granted GEICO's motion for summary judgment and denied Omphil Care's cross motion for summary judgment. The court found that the evidence submitted by GEICO was sufficient to establish that Omphil Care had failed to appear for the EUOs, based on the timely mailing of scheduling letters and denial of claim forms. Therefore, the court affirmed the order granting GEICO's motion for summary judgment.

Reported in New York Official Reports at Omphil Care, Inc. v GEICO Ins. Co. (2019 NY Slip Op 52065(U))

Omphil Care, Inc. v GEICO Ins. Co. (2019 NY Slip Op 52065(U)) [*1]

Omphil Care, Inc. v GEICO Ins. Co.

2019 NY Slip Op 52065(U) [66 Misc 3d 131(A)]

Decided on December 13, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 13, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2018-1604 K C

Omphil Care, Inc., as Assignee of Small, Shereen, Appellant,
against
GEICO Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered February 20, 2018. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s contentions, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 59 Misc 3d 152[A], 2018 NY Slip Op 50864[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019