Omphil Care, Inc. v. Allstate Ins. Co.

Full title: Omphil Care, Inc., as Assignee of PAUL FABIOLA, Appellant, v. Allstate…

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

Date published: Nov 1, 2016

2016 N.Y. Slip Op. 51606 (N.Y. App. Term 2016)

48 N.Y.S.3d 266

Opinion

2013-2347 Q C

11-01-2016

Omphil Care, Inc., as Assignee of PAUL FABIOLA, Appellant, v. Allstate Insurance Company, Respondent.

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

PRESENT: :

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered September 17, 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 17, 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