July 14, 2017

Bay LS Med. Supplies, Inc. v Allstate Ins. Co. (2017 NY Slip Op 50916(U))

Headnote

The court considered the fact that the plaintiff, Bay LS Medical Supplies, Inc., had moved for summary judgment to recover assigned first-party no-fault benefits, while the defendant, Allstate Insurance Company, had cross-moved for summary judgment to dismiss the complaint on the basis that the plaintiff had failed to appear for scheduled examinations under oath. The main issue decided was whether the plaintiff's failure to appear for scheduled examinations under oath warranted the dismissal of the complaint. The holding of the court was that the defendant's cross motion for summary judgment dismissing the complaint was granted and the plaintiff's motion for summary judgment was denied. The court reversed the previous order in favor of the plaintiff and in accordance with the reasons stated in the previous case of Bay LS Med. Supplies, Inc. v Allstate Ins. Co. (50 Misc 3d 147[A], 2016 NY Slip Op 50319[U]), the defendant's motion for summary judgment to dismiss the complaint was granted.

Reported in New York Official Reports at Bay LS Med. Supplies, Inc. v Allstate Ins. Co. (2017 NY Slip Op 50916(U))

Bay LS Med. Supplies, Inc. v Allstate Ins. Co. (2017 NY Slip Op 50916(U)) [*1]

Bay LS Med. Supplies, Inc. v Allstate Ins. Co.

2017 NY Slip Op 50916(U) [56 Misc 3d 131(A)]

Decided on July 14, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 14, 2017

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-721 K C

Bay LS Medical Supplies, Inc., as Assignee of Vixiano Cherestal, Respondent,
against
Allstate Insurance Company, Appellant.

Stern & Montana, LLP (Richard Montana, Esq.), for appellant. Law Offices of Emilia I. Rutigliano, P.C. (Marina Josovich, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered November 1, 2013. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

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

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. Defendant appeals from an order of the Civil Court which granted plaintiff’s motion and denied defendant’s cross motion.

For the reasons stated in Bay LS Med. Supplies, Inc. v Allstate Ins. Co. (50 Misc 3d 147[A], 2016 NY Slip Op 50319[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]), the order is reversed, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 14, 2017