Parisien v. Metlife Auto & Home

• Court: Appellate Terms of the Supreme Court of New York
• Decided: February 8, 2017
• Docket: 2017 NYSlipOp 50208(U)
• Status: Published

Opinion

Jules Francois Parisien, M.D., as Assignee of Lashanda Effort, Appellant,

against

Metlife Auto & Home, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered March 26, 2015. 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, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff opposed the motion. By order entered March 26, 2015, the Civil Court granted defendant's motion.

Contrary to plaintiff's contention, defendant was not required to set forth objective reasons for requesting EUOs in order to establish its prima facie entitlement to summary judgment, as an insurer need only demonstrate "as a matter of law that it twice duly demanded an [EUO] from the [provider] . . . that the provider failed to appear and that the [insurer] issued a timely denial of the claims" (Interboro Ins. Co. v Clennon, 113 AD3d 596, 597 [2014]; see Barakat Med. Care, P.C. v Nationwide Ins. Co., 49 Misc 3d 147[A], 2015 NY Slip Op 51677[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Plaintiff's remaining contention is not properly before this court, as this argument is being raised for the first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]).

Accordingly, the order is affirmed.

Weston, J.P., Aliotta and Elliot, JJ., concur.

Decision Date: February 08, 2017