August 2, 2019

Lidas Med. Supply, Inc. v Global Liberty Ins. (2019 NY Slip Op 51275(U))

Headnote

The court considered an appeal from an order of the Civil Court that denied the defendant's cross motion for summary judgment dismissing the complaint. The main issue decided was whether the plaintiff had failed to appear for duly scheduled examinations under oath and if this constituted grounds for dismissing the complaint. The holding of the court was that the order denying the defendant's motion was reversed, and the defendant's cross motion for summary judgment dismissing the complaint was granted. This decision was based on the reasoning provided in a similar case, Right Aid Med. Supply Corp., as Assignee of Kusi Comfort v Ameriprise Auto & Home. The appellate court judges all concurred with this decision.

Reported in New York Official Reports at Lidas Med. Supply, Inc. v Global Liberty Ins. (2019 NY Slip Op 51275(U))

Lidas Med. Supply, Inc. v Global Liberty Ins. (2019 NY Slip Op 51275(U)) [*1]

Lidas Med. Supply, Inc. v Global Liberty Ins.

2019 NY Slip Op 51275(U) [64 Misc 3d 143(A)]

Decided on August 2, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 2, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-1945 K C

Lidas Medical Supply, Inc., as Assignee of Gonzales, Luis, Respondent,
against
Global Liberty Insurance, Appellant.

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Law Office of John Gallagher, PLLC (John Gallagher of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Andrew S. Borrok, J.), entered July 6, 2017. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, 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, defendant appeals from so much of an order of the Civil Court as denied defendant’s cross motion which had sought summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath.

For the reasons stated in Right Aid Med. Supply Corp., as Assignee of Kusi Comfort v Ameriprise Auto & Home (___ Misc 3d ___, 2019 NY Slip Op _____ [appeal No. 2017-1776 K C], decided herewith), the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 02, 2019