June 17, 2022

Regal Acupuncture, P.C. v Allstate Ins. Co. (2022 NY Slip Op 50604(U))

Headnote

The relevant facts considered by the court were that Regal Acupuncture, P.C. was seeking to recover first-party no-fault benefits from Allstate Insurance Company. The main issue decided was whether Allstate had properly mailed examination under oath (EUO) scheduling letters in a timely manner. The court held that Allstate had demonstrated prima facie evidence that the EUO scheduling letters had been timely and properly mailed. The court also ruled that an appearance at an EUO is required, regardless of whether the insurance company demands the EUO before or after the claim form is submitted. Additionally, the court declined to consider certain arguments raised by Regal Acupuncture, P.C. for the first time on appeal, or deemed them moot. Therefore, the court affirmed the order denying plaintiff's motion for summary judgment and granting defendant's cross motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Regal Acupuncture, P.C. v Allstate Ins. Co. (2022 NY Slip Op 50604(U))

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

Regal Acupuncture, P.C., as Assignee of Rahman, Younusur, Appellant,
against
Allstate Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Abrams, Cohen & Associates, P.C. (Frank Piccininni of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered August 27, 2019. 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 denying plaintiff’s motion for summary judgment and granting defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s contention, the record reflects that defendant demonstrated, prima facie, that the examination under oath (EUO) scheduling letters had been timely and properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Contrary to plaintiff’s further contention, an “appearance at an [EUO] is required whether the insurance company demands the [EUO] before the claim form is submitted or after the claim form is submitted” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; see Longevity Med. Supply, Inc. v Nationwide Ins., 69 Misc 3d 128, 2020 NY Slip Op 51133[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; see also PV Holding Corp. v AB Quality Health Supply Corp., 189 AD3d 645 [2020]; LDE Med. Servs., P.C. v Interboro Ins. Co., 31 Misc 3d 146[A], 2011 NY Slip Op 50946[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Plaintiff’s remaining arguments are either 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]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]), or are moot.

Accordingly, the order is affirmed.

ALIOTTA, P.J., GOLIA and BUGGS, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 17, 2022