August 11, 2017

Compas Med., P.C. v ELRAC, Inc. (2017 NY Slip Op 51019(U))

Headnote

The defendant established the assignor's EUO nonappearances and a presumption of timely mailing of the denial forms. The provider appealed summary judgment dismissing its complaint for assigned no-fault benefits, challenging both the mailing proof and proof of nonappearance. The Appellate Term, Second Department, found the defendant's submissions sufficient on both points and affirmed the order. It declined to consider the provider's remaining contention because that argument was raised for the first time on appeal.

Reported in New York Official Reports at Compas Med., P.C. v ELRAC, Inc. (2017 NY Slip Op 51019(U))

[*1]
Compas Med., P.C. v ELRAC, Inc.
2017 NY Slip Op 51019(U) [56 Misc 3d 137(A)]
Decided on August 11, 2017
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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 11, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1515 Q C

Compas Medical, P.C., as Assignee of Sainphor, Anthony, Appellant,

against

ELRAC, Inc., Respondent.


The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Brand, Glick & Brand, P.C. (Jason Bertuna, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered May 27, 2014. 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, 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).

Contrary to plaintiff’s contentions, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the denial of claims forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and to demonstrate that plaintiff’s assignor had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

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.


ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 11, 2017

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