December 3, 2008

Tuncel v Progressive Cas. Ins. Co. (2008 NY Slip Op 52455(U))

Headnote

The court considered the fact that the plaintiff, a medical provider, was seeking to recover first-party no-fault benefits from the defendant insurance company for medical services provided to the defendant's insured. The main issue decided was whether the defendant was entitled to summary judgment dismissing the complaint based on the insured's failure to appear for independent medical examinations (IMEs). The court held that the defendant was entitled to summary judgment because the chiropractor who was to perform the IME of the insured established that the insured failed to appear for the IME at the address set forth in the scheduling letters, and the plaintiff's argument was unsupported by the record. The court also found that the plaintiff's remaining contentions, raised for the first time on appeal, lacked merit. Therefore, the court upheld the decision of the lower court to grant the defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Tuncel v Progressive Cas. Ins. Co. (2008 NY Slip Op 52455(U))

Tuncel v Progressive Cas. Ins. Co. (2008 NY Slip Op 52455(U)) [*1]

Tuncel v Progressive Cas. Ins. Co.

2008 NY Slip Op 52455(U) [21 Misc 3d 143(A)]

Decided on December 3, 2008

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through December 26, 2008; it will not be published in the printed Official Reports.

Decided on December 3, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., GOLIA and STEINHARDT, JJ
2007-1847 K C.

H.E. Tuncel, M.D. a/a/o MOHAMMAD KIFAYEH, Appellant,
against
Progressive Casualty Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered September 19, 2007. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint based upon the assignor’s failure to appear for independent medical examinations (IMEs). In opposition, plaintiff argued only that defendant failed to establish that the IMEs were scheduled to occur at an address at which the doctor maintained an office. The court below granted defendant’s motion for summary judgment dismissing the complaint, and the instant appeal by plaintiff ensued.

Since plaintiff raised no issue in the court below, or on appeal, with respect to the timeliness of defendant’s NF-10 denial of claim forms, which denied plaintiff’s claims on the ground that plaintiff’s assignor failed to attend scheduled IMEs, we do not pass upon the propriety of the implicit determination of the court below with respect thereto. Contrary to plaintiff’s contention, the affidavit submitted by the chiropractor who was to perform an IME of plaintiff’s assignor established that the assignor failed to appear for an IME in her office, which was located at the address set forth in the IME scheduling letters (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, plaintiff’s argument is unsupported by the record.

Plaintiff’s remaining contentions are improperly raised for the first time on appeal (see Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]) and, in any event, lack merit (see e.g. Fair Price Med. Supply Corp. v Clarendon Natl. Ins. Co., 15 Misc 3d 130[A], 2007 NY Slip Op 50639[U] [*2][App Term, 2d & 11th Jud Dists 2007]).

Accordingly, the court below properly granted defendant’s motion for summary judgment dismissing the complaint.

Weston Patterson, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: December 03, 2008