June 1, 2018

Active Care Med. Supply Corp. v ELRAC, Inc. (2018 NY Slip Op 50826(U))

Headnote

The self-insurer established timely mailing of its denial, and the provider's remaining argument was raised for the first time on appeal. The provider sought summary judgment for assigned no-fault benefits, while the self-insurer cross-moved to dismiss based on the provider's failure to attend duly scheduled EUOs. Citing St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., the appellate court rejected the mailing challenge and declined to consider the unpreserved argument. The Appellate Term, Second Department, affirmed the denial of the provider's motion and the grant of the self-insurer's cross motion dismissing the complaint.

Reported in New York Official Reports at Active Care Med. Supply Corp. v ELRAC, Inc. (2018 NY Slip Op 50826(U))

[*1]
Active Care Med. Supply Corp. v ELRAC, Inc.
2018 NY Slip Op 50826(U) [59 Misc 3d 149(A)]
Decided on June 1, 2018
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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 2018
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2375 K C

Active Care Medical Supply Corp., as Assignee of Blake, Edward, Appellant,

against

ELRAC, Inc., Respondent.


The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Carman, Callahan & Ingham, LLP (Paul A. Barrett of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 14, 2015. 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 on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contention on appeal, defendant established that the denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff’s remaining contention is not properly before this court, as this argument is being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]), and we decline to consider it.

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.


ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 01, 2018

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