November 16, 2018

Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D. v GEICO Ins. Co. (2018 NY Slip Op 51653(U))

Headnote

The court in this case considered whether a provider was entitled to recover assigned first-party no-fault benefits from an insurance company. The main issue was whether the provider had failed to appear for duly scheduled examinations under oath (EUOs) as required by the insurance company. The court found that the insurance company had provided sufficient proof to establish that the EUO scheduling letters and denial of claim form had been timely mailed and that the provider had failed to appear for the EUOs. The court also held that the insurance company was not required to set forth objective reasons for requesting EUOs in order to establish its entitlement to summary judgment. The court ultimately affirmed the lower court's decision to deny the provider's motion for summary judgment and grant the insurance company's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D. v GEICO Ins. Co. (2018 NY Slip Op 51653(U))

Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D. v GEICO Ins. Co. (2018 NY Slip Op 51653(U)) [*1]

Gentlecare Ambulatory Anesthesia Servs.; Lyonel F. Paul, M.D. v GEICO Ins. Co.

2018 NY Slip Op 51653(U) [61 Misc 3d 143(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This opinion is uncorrected and will not be published in the printed Official Reports.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
2016-1572 Q C

Gentlecare Ambulatory Anesthesia Services; Lyonel F. Paul, M.D., as Assignee of Perez, Ashley, Appellant,
against
GEICO Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered April 6, 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 contentions, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption 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 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]). Furthermore, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment (see Gentlecare Ambulatory Anesthesia Servs. v GEICO Ins. Co., 59 Misc 3d 152[A], 2018 NY Slip Op 50864[U] [App Term, 2d, 11th & 13th Jud Dists 2018]).

Plaintiff’s remaining contention with respect to defendant’s cross motion is not properly before this court, as this argument is being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]), and we decline to consider it. Consequently, plaintiff has not provided any basis to disturb the Civil Court’s order.

Accordingly, the order is affirmed.

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

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