November 1, 2016

Omphil Care, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51617(U))

Headnote

The court considered the fact that the plaintiff, Omphil Care, Inc., as Assignee of ALTON ELLIS, 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 on the ground that the plaintiff had failed to appear for duly scheduled examinations under oath. The main issue that was decided was whether the defendant's cross motion for summary judgment dismissing the complaint should be granted or denied. The court held that the defendant's cross motion for summary judgment dismissing the complaint was denied, thus affirming the modified order. The holding of the case was that the defendant's cross motion for summary judgment dismissing the complaint was denied, as the court found that the plaintiff's failure to appear for examinations under oath was not sufficient grounds to dismiss the complaint.

Reported in New York Official Reports at Omphil Care, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51617(U))

Omphil Care, Inc. v Allstate Ins. Co. (2016 NY Slip Op 51617(U)) [*1]

Omphil Care, Inc. v Allstate Ins. Co.

2016 NY Slip Op 51617(U) [53 Misc 3d 147(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This opinion is uncorrected and will not be published in the printed Official Reports.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.
2014-354 Q C

Omphil Care, Inc., as Assignee of ALTON ELLIS, Appellant,
against
Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered January 8, 2014. 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 January 8, 2014, 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