Allay Med. Servs., P.C. v. Travelers Ins. Co.

Appellate Terms of the Supreme Court of New York

Allay Med. Servs., P.C. v. Travelers Ins. Co.

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 8, 2019

Docket2019 NYSlipOp 51806(U)

StatusPublished

This text of Allay Med. Servs., P.C. v. Travelers Ins. Co. (Allay Med. Servs., P.C. v. Travelers Ins. Co.) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Allay Med. Servs., P.C. v. Travelers Ins. Co., (N.Y. Ct. App. 2019).

Pincite

Opinion

Allay Medical Services, P.C., as Assignee of Harrison, Henry, Appellant,

against

Travelers Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Aloy O. Ibuzor (Allison H. Farkas of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Louis L. Nock, J.), entered September 12, 2017. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.

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's assignor had failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff's cross motion for summary judgment.

Contrary to plaintiff's contentions on appeal, defendant established 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 that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Plaintiff's remaining arguments are 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]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 08, 2019

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