August 5, 2022

ACH Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50782(U))

Headnote

The court considered an appeal from a provider seeking to recover assigned first-party no-fault benefits, in which the defendant had moved for summary judgment dismissing the complaint on the grounds that the plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs). The court also considered the plaintiff's cross motion for summary judgment. The main issue decided was whether the plaintiff's assignor had failed to appear for the scheduled EUOs, and whether the plaintiff's remaining argument, which was raised for the first time on appeal, should be considered. The court affirmed the lower court's order, holding that the defendant had established that the plaintiff's assignor had failed to appear for the EUOs and declined to consider the plaintiff's remaining argument.

Reported in New York Official Reports at ACH Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50782(U))

ACH Chiropractic, P.C. v Nationwide Ins. (2022 NY Slip Op 50782(U)) [*1]

ACH Chiropractic, P.C. v Nationwide Ins.

2022 NY Slip Op 50782(U) [76 Misc 3d 128(A)]

Decided on August 5, 2022

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This opinion is uncorrected and will not be published in the printed Official Reports.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 5, 2022

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

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2019-1357 K C

ACH Chiropractic, P.C., as Assignee of Ferril, Gabriel J., Appellant,
against
Nationwide Ins., Respondent.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), dated June 28, 2019. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

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), and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s contention on appeal, defendant established 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]).

Plaintiff’s remaining argument is not properly before this court as it is being raised for the [*2]first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 5, 2022