October 18, 2019

Refill RX Pharmacy, Inc. v Global Liberty Ins. Co. of NY (2019 NY Slip Op 51702(U))

Headnote

The court considered the appeal from an order of the Civil Court which granted the plaintiff's motion to compel discovery and denied the defendant's cross motion for summary judgment dismissing the complaint. The main issue was whether the plaintiff's assignor had failed to appear for duly scheduled independent medical examinations, which would affect the outcome of the case. The court ultimately reversed the order, granted the defendant's cross motion for summary judgment dismissing the complaint, and denied the plaintiff's motion to compel discovery as moot. The holding of the case was in favor of the defendant, with the court ruling that the plaintiff's assignor's failure to appear for scheduled medical examinations warranted the dismissal of the complaint.

Reported in New York Official Reports at Refill RX Pharmacy, Inc. v Global Liberty Ins. Co. of NY (2019 NY Slip Op 51702(U))

Refill RX Pharmacy, Inc. v Global Liberty Ins. Co. of NY (2019 NY Slip Op 51702(U)) [*1]

Refill RX Pharm., Inc. v Global Liberty Ins. Co. of NY

2019 NY Slip Op 51702(U) [65 Misc 3d 140(A)]

Decided on October 18, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 18, 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
2018-1238 K C

Refill RX Pharmacy, Inc., as Assignee of Mark Elvirjames, Respondent,
against
Global Liberty Ins. Co. of NY, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Gary Tsirelman, P.C. (Jung Pryjma of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered April 26, 2018. The order granted plaintiff’s motion to compel discovery and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, defendant’s cross motion for summary judgment dismissing the complaint is granted and plaintiff’s motion to compel discovery is denied as moot.

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

For the reasons stated in Valdan Acupuncture, P.C., as Assignee of Maria Marte v Global Liberty Ins. Co. of NY (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2018-1352 K C], decided herewith), the order is reversed, defendant’s cross motion for summary judgment dismissing the complaint is granted and plaintiff’s motion to compel discovery is denied as moot.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 18, 2019