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Great Health Care Chiropractic, P.C. v. Esurance

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
May 19, 2015
2015 N.Y. Slip Op. 50807 (N.Y. App. Term 2015)

Opinion

2013-71 Q C

05-19-2015

Great Health Care Chiropractic, P.C., as Assignee of DAQUAN RICE, Appellant, v. Esurance, Respondent.


Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered December 11, 2012. 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.

Contrary to plaintiff's contention, defendant established that the examination under oath (EUO) scheduling letters had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that plaintiff's assignor had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Since defendant demonstrated that plaintiff's assignor had failed to comply with a condition precedent to coverage (id. at 722) and that defendant had timely denied (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16) the claims on that ground, defendant was entitled to summary judgment dismissing the complaint.

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.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: May 19, 2015


Summaries of

Great Health Care Chiropractic, P.C. v. Esurance

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
May 19, 2015
2015 N.Y. Slip Op. 50807 (N.Y. App. Term 2015)
Case details for

Great Health Care Chiropractic, P.C. v. Esurance

Case Details

Full title:Great Health Care Chiropractic, P.C., as Assignee of DAQUAN RICE…

Court:SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Date published: May 19, 2015

Citations

2015 N.Y. Slip Op. 50807 (N.Y. App. Term 2015)
17 N.Y.S.3d 382