December 17, 2014

New Way Med. Supply Corp. v ELRAC, Inc. (2014 NY Slip Op 51830(U))

Headnote

A provider sued a rental car company for assigned first-party no-fault benefits, and the Civil Court granted the defendant summary judgment, finding it timely denied the claims because the assignor failed to attend scheduled examinations under oath. The only issue the provider raised on appeal was whether the letter advising of the defendant's follow-up verification request was sufficient under 11 NYCRR 65-3.6(b). The Appellate Term held that this argument was raised for the first time on appeal and was not properly before it. The order dismissing the complaint was affirmed.

Reported in New York Official Reports at New Way Med. Supply Corp. v ELRAC, Inc. (2014 NY Slip Op 51830(U))

[*1]
New Way Med. Supply Corp. v ELRAC, Inc.
2014 NY Slip Op 51830(U) [46 Misc 3d 132(A)]
Decided on December 17, 2014
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on December 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-2085 Q C

New Way Medical Supply Corp. as Assignee of JENNIFER COLON, Appellant,

against

ELRAC, Inc., Respondent.


Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered August 15, 2012. 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, the Civil Court granted defendant’s motion for summary judgment dismissing the complaint, finding that defendant had timely denied plaintiff’s claims based upon the failure of plaintiff’s assignor to attend duly scheduled examinations under oath (EUOs).

The sole issue raised on appeal by plaintiff is whether the letter advising plaintiff of defendant’s follow-up verification request was sufficient (see 11 NYCRR 65-3-6 [b]). However, this argument is not properly before this court, as it is being 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 Solomon, JJ., concur.


Decision Date: December 17, 2014