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

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
Dec 13, 2019
66 Misc. 3d 131 (N.Y. App. Term 2019)

Opinion

2018-1604 K C

12-13-2019

OMPHIL CARE, INC., as Assignee of Small, Shereen, Appellant, v. GEICO INS. CO., Respondent.

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


The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant.

Rivkin Radler, LLP (Stuart M. Bodoff of counsel), for respondent.

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) and denied plaintiff's cross motion for summary judgment.

Contrary to plaintiff's contentions, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the EUO scheduling letters and denial of claim form had been timely mailed (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co. , 50 AD3d 1123 [2008] ) and to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co. , 35 AD3d 720 [2006] ; Gentlecare Ambulatory Anesthesia Servs. v. GEICO Ins. Co. , 59 Misc 3d 152[A], 2018 NY Slip Op 50864[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018] ).

Accordingly, the order is affirmed.

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


Summaries of

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

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
Dec 13, 2019
66 Misc. 3d 131 (N.Y. App. Term 2019)
Case details for

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

Case Details

Full title:Omphil Care, Inc., as Assignee of Small, Shereen, Appellant, v. GEICO Ins…

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

Date published: Dec 13, 2019

Citations

66 Misc. 3d 131 (N.Y. App. Term 2019)
2019 N.Y. Slip Op. 52065
120 N.Y.S.3d 556