Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered September 13, 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 13, 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 N.Y. 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.