Opinion
2017-2383 K C
11-08-2019
ALLAY MEDICAL SERVICES, P.C., as Assignee of Harrison, Henry, Appellant, v. 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.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Law Office of Aloy O. Ibuzor (Allison H. Farkas of counsel), for respondent.
PRESENT: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
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.