Restoration Chiropractic, P.C. v. 21st Century Ins. Co.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 16, 2018
• Docket: 2018 NYSlipOp 51656(U)
• Status: Published

Opinion

Restoration Chiropractic, P.C., as Assignee of Lopez, Candice, Appellant,

against

21st Century Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Offices of Bryan M. Rothenberg (Maryana Feigen of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered May 24, 2016. 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's assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff's contention, the proof submitted by defendant was sufficient to establish the proper mailing of the EUO scheduling letters (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff's remaining contentions are either without merit or not considered because they are raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 16, 2018