November 8, 2019

Allay Med. Servs., P.C. v Travelers Ins. Co. (2019 NY Slip Op 51806(U))

Headnote

The court considered the fact that the plaintiff, Allay Medical Services, P.C., was seeking to recover first-party no-fault benefits as an assignee of Henry Harrison. The main issue in the case was whether the defendant, Travelers Insurance Company, was entitled to summary judgment dismissing the complaint on the basis that the assignor had failed to appear for duly scheduled examinations under oath (EUOs). The court held that the defendant had established that the EUO scheduling letters and denial of claim form had been timely mailed and that the plaintiff had failed to appear for the scheduled EUOs. As a result, the court affirmed the order granting the defendant's motion for summary judgment and dismissing the complaint. Any remaining arguments raised by the plaintiff for the first time on appeal were not considered by the court.

Reported in New York Official Reports at Allay Med. Servs., P.C. v Travelers Ins. Co. (2019 NY Slip Op 51806(U))

Allay Med. Servs., P.C. v Travelers Ins. Co. (2019 NY Slip Op 51806(U)) [*1]

Allay Med. Servs., P.C. v Travelers Ins. Co.

2019 NY Slip Op 51806(U) [65 Misc 3d 147(A)]

Decided on November 8, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 8, 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
2017-2383 K C

Allay Medical Services, P.C., as Assignee of Harrison, Henry, Appellant,
against
Travelers Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Aloy O. Ibuzor (Allison H. Farkas of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Louis L. Nock, J.), entered September 12, 2017. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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’s assignor 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 on appeal, defendant established 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 that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Plaintiff’s remaining arguments are not properly before this court as they are being raised for the first time on appeal, and we decline to consider them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 08, 2019