November 1, 2016

Omphil Care, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51604(U))

Headnote

The court considered a case where Omphil Care, Inc. as the assignee of Rocio Cruz, was seeking to recover first-party no-fault benefits from Allstate Insurance Company. The main issue decided was whether Allstate had the grounds to dismiss the complaint on the basis that Omphil Care, Inc. had failed to appear for scheduled examinations under oath. The court ultimately held that Allstate's cross motion for summary judgment dismissing the complaint was denied, affirming the decision of the lower court. The court cited the reasons stated in a similar case, Omphil Care, Inc., as Assignee of Paul Fabiola v Allstate Ins. Co., as the basis for their decision. The appellate term judges Pesce, Aliotta, and Solomon all concurred with the decision.

Reported in New York Official Reports at Omphil Care, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51604(U))

Omphil Care, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51604(U)) [*1]

Omphil Care, Inc. v Allstate Ins. Co.

2016 NY Slip Op 51604(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This opinion is uncorrected and will not be published in the printed Official Reports.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.
2013-2345 Q C

Omphil Care, Inc., as Assignee of ROCIO CRUZ, 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 had 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