May 18, 2015

Delta Diagnostic Radiology, P.C. v Esurance (2015 NY Slip Op 50785(U))

Headnote

In an action by a provider to recover assigned first-party no-fault benefits, the Civil Court had denied the provider's motion for summary judgment and granted the insurer's cross motion to dismiss. The Appellate Term, Second Department found that the insurer established that the examination under oath scheduling letters were timely mailed and that the assignor failed to appear for the scheduled examinations. Appearance at an examination under oath is a condition precedent to coverage, and the insurer timely denied the claims on that ground. The order was affirmed. The court did not reach the plaintiff's contention regarding independent medical examinations.

Reported in New York Official Reports at Delta Diagnostic Radiology, P.C. v Esurance (2015 NY Slip Op 50785(U))

[*1]
Delta Diagnostic Radiology, P.C. v Esurance
2015 NY Slip Op 50785(U) [47 Misc 3d 151(A)]
Decided on May 18, 2015
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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT:
2013-97 Q C May 18, 2015 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd, 11th & 13th JUDICIAL DISTRICTS PRES ENT : PESCE, P.J., ALIOTTA and SOLOMON, JJ. DECIDED

Delta Diagnostic Radiology, P.C. as Assignee of DAVE DOUGLAS, Appellant,

against

Esurance, Respondent.


Appeal from an order of the Civil Court of the City of New York, Queens County (James E. d’Auguste, J.), entered December 7, 2012. 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.

Contrary to plaintiff’s contention, defendant established that the examination under oath (EUO) scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and 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]). Since defendant demonstrated that plaintiff’s assignor had failed to comply with a condition precedent to coverage (id. at 722) and that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16) the claims on that ground, defendant was entitled to summary judgment dismissing the complaint.

In light of the foregoing, we need not pass upon plaintiff’s contention that defendant failed to establish that plaintiff’s assignor had also failed to appear for duly scheduled independent medical examinations. 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.


Decision Date: May 18, 2015