Opinion
No. 2020-189 K C
06-17-2022
Regal Acupuncture, P.C., as Assignee of Rahman, Younusur, Appellant, v. Allstate Insurance Company, Respondent.
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Abrams, Cohen & Associates, P.C. (Frank Piccininni of counsel), for respondent.
Unpublished Opinion
The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant.
Abrams, Cohen & Associates, P.C. (Frank Piccininni of counsel), for respondent.
PRESENT:: THOMAS P. ALIOTTA, P.J., DONNA-MARIE E. GOLIA, CHEREÉ A. BUGGS, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Rosemarie Montalbano, J.), entered August 27, 2019. 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 denying plaintiff's motion for summary judgment and granting defendant's cross motion for summary judgment dismissing the complaint.
Contrary to plaintiff's contention, the record reflects that defendant demonstrated, prima facie, that the examination under oath (EUO) scheduling letters had been timely and properly mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 A.D.3d 1123 [2008]). Contrary to plaintiff's further contention, an "appearance at an [EUO] is required whether the insurance company demands the [EUO] before the claim form is submitted or after the claim form is submitted" (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 A.D.3d 720, 721 [2006]; see Longevity Med. Supply, Inc. v Nationwide Ins., 69 Misc.3d 128, 2020 NY Slip Op 51133[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2020]; see also PV Holding Corp. v AB Quality Health Supply Corp., 189 A.D.3d 645 [2020]; LDE Med. Servs., P.C. v Interboro Ins. Co., 31 Misc.3d 146 [A], 2011 NY Slip Op 50946[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Plaintiff's remaining arguments are either 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 A.D.3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 A.D.3d 579 [2004]), or are moot.
Accordingly, the order is affirmed.
ALIOTTA, P.J., GOLIA and BUGGS, JJ., concur.