May 3, 2019

Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2019 NY Slip Op 50677(U))

Headnote

The court considered whether the provider, Gentlecare Ambulatory Anesthesia Services, had failed to appear for duly scheduled examinations under oath (EUOs) in a case to recover assigned first-party no-fault benefits from GEICO Insurance Company. The main issue decided was whether the proof submitted by GEICO Insurance Company was sufficient to demonstrate that Gentlecare had failed to appear for the EUOs. The court held that the proof submitted by defendant in support of its cross motion was sufficient to demonstrate that Gentlecare had failed to appear for the EUOs, and therefore denied the plaintiff's motion for summary judgment and granted the defendant's cross motion for summary judgment dismissing the complaint. The court found that the plaintiff's remaining arguments were either improperly raised for the first time on appeal and/or lacked merit.

Reported in New York Official Reports at Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2019 NY Slip Op 50677(U))

Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co. (2019 NY Slip Op 50677(U)) [*1]

Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co.

2019 NY Slip Op 50677(U) [63 Misc 3d 145(A)]

Decided on May 3, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 3, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-2889 K C

Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D., as Assignee of Simmons, Mary, Appellant,
against
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.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 12, 2016. 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 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contention, the proof submitted by defendant in support of its cross motion was sufficient 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]). Plaintiff’s remaining arguments are either improperly raised for the first time on appeal and/or lack merit (see Parisien v Metlife Auto & Home, 54 Misc 3d 143[A], 2017 NY Slip Op 50208[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: May 03, 2019