April 27, 2012

Eagle Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50772(U))

Headnote

The main issue in this case was whether the provider, Eagle Surgical Supply, Inc., was entitled to recover assigned first-party no-fault benefits from New York Central Mutual Fire Insurance Co. Plaintiff's assignor failed to appear for examinations under oath (EUOs), which led to the dismissal of plaintiff's claims in the sums of $1,013.25, $549.18 and $844.13. The main argument on appeal was that the insurance policy did not contain a provision entitling the defendant to EUOs. However, the court found that this argument lacked merit based on previous legal precedents. The court also determined that plaintiff's remaining contention was not properly before the court since it was raised for the first time on appeal. As a result, the order granting the branches of defendant's motion seeking summary judgment dismissing plaintiff's claims was affirmed.

Reported in New York Official Reports at Eagle Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50772(U))

Eagle Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 50772(U)) [*1]

Eagle Surgical Supply, Inc. v New York Cent. Mut. Fire Ins. Co.

2012 NY Slip Op 50772(U) [35 Misc 3d 135(A)]

Decided on April 27, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 27, 2012

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

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
.

Eagle Surgical Supply, Inc. as Assignee of EDDIE BARRINGTON, Appellant, —
against
New York Central Mutual Fire Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered September 22, 2008. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s claims in the sums of $1,013.25, $549.18 and $844.13.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order as granted the branches of defendant’s motion seeking summary judgment dismissing plaintiff’s claims in the sums of $1,013.25, $549.18 and $844.13.

The branches of defendant’s motion seeking summary judgment dismissing plaintiff’s claims in the sums of $1,013.25, $549.18 and $844.13 were granted due to the failure of plaintiff’s assignor to appear for examinations under oath (EUOs). On appeal, plaintiff contends that these branches of defendant’s motion should have been denied because defendant never proved that the applicable automobile insurance policy contained a provision entitling defendant to EUOs. This argument lacks merit (see Mega Supplies Billing, Inc. v State Farm Mut. Auto. Ins. Co., 33 Misc 3d 136[A], 2011 NY Slip Op 52023[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Dover Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 28 Misc 3d 140[A], 2010 NY Slip Op 51605[U] [App Term, 1st Dept 2010]; Eagle Chiropractic, P.C. v Chubb Indem. Ins. Co., 19 Misc 3d 129[A], 2008 NY Slip Op 50525[U] [App Term, 9th & 10th Jud Dists 2008]).

Plaintiff’s remaining contention is not properly before this court since it is raised for the first time on appeal.

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: April 27, 2012