August 2, 2019

Ocean One Physical Therapy, P.C. v 21st Century Centennial Ins. Co. (2019 NY Slip Op 51272(U))

Headnote

The court considered the fact that the defendant's motion for summary judgment dismissing the complaint was granted on the grounds that the plaintiff's assignor had failed to appear for scheduled examinations under oath (EUOs) and that the plaintiff's cross motion for summary judgment was denied. The main issue decided was whether the defendant had established that its time to pay or deny the claims at issue was tolled, and whether the delay letters submitted were sufficient to toll the defendant's time to pay or deny the claims. The holding of the case was that the order granting the defendant's motion for summary judgment was affirmed, as the plaintiff's contention that the defendant failed to established that its time to pay or deny the claims was tolled was found to lack merit and the remaining contention was not properly before the court. Ultimately, the court held that the plaintiff failed to establish the defendant's time to pay or deny the claims was tolled, and as such, the order granting the defendant's motion for summary judgment was affirmed.

Reported in New York Official Reports at Ocean One Physical Therapy, P.C. v 21st Century Centennial Ins. Co. (2019 NY Slip Op 51272(U))

Ocean One Physical Therapy, P.C. v 21st Century Centennial Ins. Co. (2019 NY Slip Op 51272(U)) [*1]

Ocean One Physical Therapy, P.C. v 21st Century Centennial Ins. Co.

2019 NY Slip Op 51272(U) [64 Misc 3d 143(A)]

Decided on August 2, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 2, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
2017-1778 K C

Ocean One Physical Therapy, P.C., as Assignee of Maxim Savelyev, Appellant,
against
21st Century Centennial Insurance Company, Respondent.

Law Offices of Damin J. Toell, P.C. (Damin J. Toell of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Konstantinos Tsirkas of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered July 7, 2017. 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.

Plaintiff’s contention that defendant failed to establish that its time to pay or deny the claims at issue were tolled lacks merit. While plaintiff correctly contends that the letters annexed to defendant’s motion as Exhibit “D” were delay letters which failed to toll defendant’s time to pay or deny the claims, defendant’s motion also included copies of the EUO scheduling letters mailed by the law firm retained by defendant to conduct the EUOs, and plaintiff has raised no issue with respect to the sufficiency of those letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Great Health Care Chiropractic, P.C. v Nationwide Ins., 46 Misc 3d 130[A], 2014 NY Slip Op 51812[U] [App Term, 2d Dept, 2d, 11th [*2]& 13th Jud Dists 2014]). Plaintiff’s remaining contention is not properly before this court, as the 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., WESTON and ALIOTTA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: August 02, 2019