September 22, 2017

Laga v Lancer Ins. Co. (2017 NY Slip Op 51244(U))

Headnote

The court considered an appeal from an order of the Civil Court which granted the defendant's motion for summary judgment dismissing the complaint in this action by a provider to recover assigned first-party no-fault benefits. The main issue decided was whether the defendant's proof sufficiently established proper mailing of the denials and verification requests and if the plaintiff had failed to appear for the scheduled examinations under oath (EUOs). The court held that the defendant's proof did establish proper mailing of the denials and verification requests and that the plaintiff had failed to appear for the scheduled EUOs, therefore affirming the order granting summary judgment in favor of the defendant.

Reported in New York Official Reports at Laga v Lancer Ins. Co. (2017 NY Slip Op 51244(U))

Laga v Lancer Ins. Co. (2017 NY Slip Op 51244(U)) [*1]

Laga v Lancer Ins. Co.

2017 NY Slip Op 51244(U) [57 Misc 3d 133(A)]

Decided on September 22, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 22, 2017

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1811 Q C

Adelaida M. Laga, PT, as Assignee of Mondestin, Liliane, Appellant,
against
Lancer Insurance Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered July 1, 2014. The order granted defendant’s 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 granted defendant’s 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 arguments, defendant’s proof sufficiently established proper mailing of the denials and verification requests at issue (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 scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff’s remaining argument is improperly raised for the first time on appeal and, in any event, lacks merit.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 22, 2017