November 16, 2018

Restoration Chiropractic, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51656(U))

Headnote

The court considered a case where Restoration Chiropractic, P.C. was seeking to recover no-fault benefits from 21st Century Insurance Company, as an assignee of Lopez, Candice. The main issue decided was whether the denial of plaintiff's motion for summary judgment and the granting of defendant's cross motion for summary judgment dismissing the complaint was proper, based on the fact that plaintiff's assignor had failed to appear for scheduled examinations under oath (EUOs). The court held that the proof submitted by the defendant was sufficient to establish the proper mailing of the EUO scheduling letters and that the remaining contentions raised by the plaintiff were either without merit or not considered because they were raised for the first time on appeal. Therefore, the court affirmed the order, with costs of $25.

Reported in New York Official Reports at Restoration Chiropractic, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51656(U))

Restoration Chiropractic, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51656(U)) [*1]

Restoration Chiropractic, P.C. v 21st Century Ins. Co.

2018 NY Slip Op 51656(U) [61 Misc 3d 144(A)]

Decided on November 16, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-2055 K C

Restoration Chiropractic, P.C., as Assignee of Lopez, Candice, Appellant,
against
21st Century Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Bryan M. Rothenberg (Maryana Feigen of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered May 24, 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’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contention, the proof submitted by defendant was sufficient to establish the proper mailing of the EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff’s remaining contentions are either without merit or not considered because they are raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 16, 2018