December 6, 2019

Omphil Care, Inc. v GEICO Ins. Co. (2019 NY Slip Op 51979(U))

Headnote

The main issue decided in this case was whether or not the defendant, GEICO Ins. Co., was entitled to summary judgment dismissing the complaint brought by Omphil Care, Inc. as assignee of Rivera, Eugenio. The lower court had denied GEICO's cross motion for summary judgment, but the Appellate Term, Second Department reversed that decision and granted GEICO's cross motion for summary judgment dismissing the complaint. The relevant facts considered by the court were that Omphil Care had failed to appear for scheduled examinations under oath (EUOs). The court found that GEICO had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms, and as a result, they were entitled to summary judgment dismissing the complaint.

Reported in New York Official Reports at Omphil Care, Inc. v GEICO Ins. Co. (2019 NY Slip Op 51979(U))

Omphil Care, Inc. v GEICO Ins. Co. (2019 NY Slip Op 51979(U)) [*1]

Omphil Care, Inc. v GEICO Ins. Co.

2019 NY Slip Op 51979(U) [65 Misc 3d 158(A)]

Decided on December 6, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 6, 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
2018-1494 K C

Omphil Care, Inc., as Assignee of Rivera, Eugenio, Respondent,
against
GEICO Ins. Co., Appellant.

Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered June 18, 2018. The order, insofar as appealed from and as limited by the brief, 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, 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 (EUOs). As limited by the brief, defendant appeals from so much of an order of the Civil Court entered June 18, 2018 as denied defendant’s cross motion for summary judgment.

In support of its cross motion, defendant submitted an affirmation from the attorney who was to perform the EUOs, which affirmation was sufficient to establish that plaintiff had failed to appear for the scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Moreover, a review of the record establishes that the Civil Court [*2]correctly determined that defendant had established the timely and proper mailing of the EUO scheduling letters and the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 6, 2019