November 30, 2018

Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51780(U))

Headnote

The main issues in this case were whether the plaintiff failed to appear for scheduled examinations under oath (EUOs) and whether the defendant sufficiently established the plaintiff's failure to appear for the EUOs. The court considered the argument that the plaintiff's remaining contention was not properly before the court, as it was being raised for the first time on appeal. The court ultimately held that the order granting the defendant's motion for summary judgment dismissing the complaint was affirmed, as the plaintiff had indeed failed to appear for two scheduled EUOs. The court declined to consider the plaintiff's remaining contention, as it was being raised for the first time on appeal.

Reported in New York Official Reports at Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51780(U))

Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2018 NY Slip Op 51780(U)) [*1]

Charles Deng Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co.

2018 NY Slip Op 51780(U)

Decided on November 30, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 30, 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
2016-1388 K C

Charles Deng Acupuncture, P.C., as Assignee of Steven Charles, Appellant,
against
State Farm Mutual Automobile Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Rivkin Radler, LLP (Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered March 16, 2016. 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 had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contention, defendant sufficiently established plaintiff’s failure to appear for two scheduled 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 (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: November 30, 2018