Ocean One Physical Therapy, P.C. v. 21st Century Centennial Ins. Co.

Appellate Terms of the Supreme Court of New York

Ocean One Physical Therapy, P.C. v. 21st Century Centennial Ins. Co.

CourtAppellate Terms of the Supreme Court of New York

DecidedAugust 2, 2019

Docket2019 NYSlipOp 51272(U)

StatusPublished

This text of Ocean One Physical Therapy, P.C. v. 21st Century Centennial Ins. Co. (Ocean One Physical Therapy, P.C. v. 21st Century Centennial 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.

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Ocean One Physical Therapy, P.C. v. 21st Century Centennial Ins. Co., (N.Y. Ct. App. 2019).

Pincite

Opinion

Ocean One Physical Therapy, P.C., as Assignee of Maxim Savelyev, Appellant,

against

21st Century Centennial Insurance Company, Respondent.

Law Offices of Damin J. Toell, P.C. (Damin J. Toell of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Konstantinos Tsirkas of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered July 7, 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.

Plaintiff's contention that defendant failed to establish that its time to pay or deny the claims at issue were tolled lacks merit. While plaintiff correctly contends that the letters annexed to defendant's motion as Exhibit "D" were delay letters which failed to toll defendant's time to pay or deny the claims, defendant's motion also included copies of the EUO scheduling letters mailed by the law firm retained by defendant to conduct the EUOs, and plaintiff has raised no issue with respect to the sufficiency of those letters (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Great Health Care Chiropractic, P.C. v Nationwide Ins., 46 Misc 3d 130[A], 2014 NY Slip Op 51812[U] [App Term, 2d Dept, 2d, 11th [*2]& 13th Jud Dists 2014]). Plaintiff's remaining contention is not properly before this court, as the 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., WESTON and ALIOTTA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 02, 2019

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Ocean One Physical Therapy, P.C., as Assignee of Maxim Savelyev, Appellant,

against

21st Century Centennial Insurance Company, Respondent.

Law Offices of Damin J. Toell, P.C. (Damin J. Toell of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Konstantinos Tsirkas of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered July 7, 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.

Plaintiff's contention that defendant failed to establish that its time to pay or deny the claims at issue were tolled lacks merit. While plaintiff correctly contends that the letters annexed to defendant's motion as Exhibit "D" were delay letters which failed to toll defendant's time to pay or deny the claims, defendant's motion also included copies of the EUO scheduling letters mailed by the law firm retained by defendant to conduct the EUOs, and plaintiff has raised no issue with respect to the sufficiency of those letters (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Great Health Care Chiropractic, P.C. v Nationwide Ins., 46 Misc 3d 130[A], 2014 NY Slip Op 51812[U] [App Term, 2d Dept, 2d, 11th [*2]& 13th Jud Dists 2014]). Plaintiff's remaining contention is not properly before this court, as the 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., WESTON and ALIOTTA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 02, 2019

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