December 8, 2017

Greenway Med. Supply Corp. v ELRAC, Inc. (2017 NY Slip Op 51711(U))

Headnote

The defendant's proof established a presumption that the denial forms were timely mailed in support of its EUO nonappearance defense. The provider appealed summary judgment dismissing its complaint for assigned no-fault benefits based on the assignor's failure to attend duly scheduled EUOs. The Appellate Term, Second Department, rejected the provider's mailing challenge and declined to consider its remaining contention because it was raised for the first time on appeal. The order was affirmed in the defendant's favor.

Reported in New York Official Reports at Greenway Med. Supply Corp. v ELRAC, Inc. (2017 NY Slip Op 51711(U))

[*1]
Greenway Med. Supply Corp. v ELRAC, Inc.
2017 NY Slip Op 51711(U) [58 Misc 3d 127(A)]
Decided on December 8, 2017
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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-1985 Q C

Greenway Medical Supply Corp., as Assignee of Patric Valery, Appellant,

against

ELRAC, Inc., Respondent.


The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Brand, Glick & Brand, P.C. (Jason P. Bertuna, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered July 24, 2014. 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’s assignor had failed to appear for duly scheduled examinations under oath.

Contrary to plaintiff’s contention, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the denial of claims forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). 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.



ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 08, 2017

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