Active Care Med. Supply Corp. v. ELRAC, Inc.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 1, 2018
• Docket: 2018 NYSlipOp 50826(U)
• Status: Published

Opinion

Active Care Medical Supply Corp., as Assignee of Blake, Edward, Appellant,

against

ELRAC, Inc., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Carman, Callahan & Ingham, LLP (Paul A. Barrett of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 14, 2015. 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 on appeal, defendant established that the denial of claim form had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff's remaining contention 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.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018