ACH Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50448(U))

The Rybak Firm, PLLC (Damin J.Toell and Richard Rozhik of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered September 26, 2019. 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).

In its submissions to this court, plaintiff’s sole contention with respect to defendant’s cross motion is that defendant did not prove that plaintiff failed to appear at the EUOs. This argument is without merit, as defendant submitted affidavits by its attorneys who were scheduled to conduct the EUOs, as well as certified transcripts of the EUOs, which were sufficient to establish that element of defendant’s case (see Pavlova v Nationwide Ins., 70 Misc 3d 144[A], 2021 NY Slip Op 50213[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]; TAM Med. Supply Corp. v 21st Century Ins. Co., 57 Misc 3d 149[A], 2017 NY Slip Op 51510[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

Plaintiff’s contention that defendant failed to timely deny the claims at issue was raised for the first time at the oral argument of this appeal, and is therefore not properly before us and has not been considered (see Opalinski v City of New York, 164 AD3d 1354 [2018]).

Accordingly, the order is affirmed.

GOLIA, J.P., TOUSSAINT and BUGGS, JJ., concur.