Omphil Care, Inc. v State Farm Mut. Auto. Ins. Co.

[*1] Omphil Care, Inc. v State Farm Mut. Auto. Ins. Co. 2016 NY Slip Op 50899(U) Decided on June 6, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 6, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2439 Q C

Omphil Care, Inc., as Assignee of FRANTZ MENARD, Appellant,

against

State Farm Mutual Automobile Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered September 12, 2013. The order granted defendant's motion for summary judgment dismissing the complaint.

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. The Civil Court found that defendant had timely and properly denied the claims at issue on the ground that plaintiff had failed to comply with a condition precedent to coverage, in that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). On appeal, plaintiff argues that defendant failed to prove that it had mailed its EUO scheduling letters and denial of claim forms, or that plaintiff had failed to appear for the EUOs; that defendant lacked justification for its EUO requests; that defendant's motion should have been denied pursuant to CPLR 3212 (f), as plaintiff had not received discovery regarding the reasonableness of defendant's EUO requests; and that defendant failed to prove that plaintiff had willfully obstructed defendant's investigation.

For the reasons stated in Vladenn Med. Supply Corp., as Assignee of Sonie Jeanty v State Farm Mut. Auto. Ins. Co. (___ Misc 3d ___, 2016 NY Slip Op ____ [appeal No. 2013-2364 Q C], decided herewith), the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: June 06, 2016