Decided on November 1, 2019

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

Decided on November 1, 2019

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

Gary Tsirelman, P.C. (Douglas Mace of counsel), for appellant. Bruno, Gerbino & Soriano, LLP (Nathan M. Shapiro of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered November 2, 2017. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims for $2,079.15, $1,035.12, $980.12, $862.60, $542.56, and $255.04.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on claims for $2,079.15, $1,035.12, $980.12, $862.60, $542.56, and $255.04 on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s contentions on appeal, defendant established that the EUO scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; see also ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists [*2]2011]) and that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Plaintiff’s remaining contentions lack merit.

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

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.

Zara Javakov, P.C. (Zara Javakov and Victoria Tarasova of counsel), for appellant. Goldberg Miller & Rubin (Melissa Brooks and Harlan Schreiber of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Andrew Borrok, J.), entered July 25, 2017. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs). As limited by its brief, plaintiff appeals from so much of an order of the Civil Court as granted defendant’s cross motion.

While plaintiff may have made a specific assertion, that defendant failed to establish that it had timely sought verification in the form of an EUO, for the first time on appeal, we, nonetheless, reach this issue as it is a question of law apparent on the face of the record, which could not have been avoided if raised at the proper juncture (see 41 Clinton Ave. Realty Corp. v [*2]Silver, 150 AD3d 1053, 1054 [2017]; Goldman & Assoc., LLP v Golden, 115 AD3d 911, 912 [2014]; Muniz v Mount Sinai Hosp. of Queens, 91 AD3d 612, 617-618 [2012]; Delta Diagnostic Radiology, P.C. v Citiwide Auto Leasing, 56 Misc 3d 132[A], 2017 NY Slip Op 50924[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).

Plaintiff correctly argues that defendant’s cross-moving papers failed to establish, as a matter of law, that the first EUO scheduling letter defendant sent to plaintiff had been timely, as defendant’s affiant stated that the letter had been mailed more than 30 days after defendant had received the claims at issue (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). In view of the foregoing, defendant failed to demonstrate its entitlement to summary judgment based upon plaintiff’s failure to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is denied.

PESCE, P.J., and ALIOTTA, J., concur.

WESTON, J., dissents and votes to affirm the order, insofar as appealed from, in the following memorandum:

Plaintiff, for the first time on appeal, challenges defendant’s EUO scheduling letter as untimely. Since plaintiff never raised this issue in the Civil Court, the issue is not preserved for appellate review, and I see no reason to review it in the interest of justice. Accordingly, I vote to affirm the order, insofar as appealed from.

With regard to the EUO scheduling letters, plaintiff challenged the sufficiency of the affidavit to establish the protocol for mailing scheduling letters. Plaintiff’s contention in the Civil Court was that the dates were not legible on the mailing receipts for the first letter, that the second letter contained a typographical error, and that a signed return receipt was not attached to the papers. Although these were the only arguments advanced by plaintiff concerning the letters, plaintiff now, on appeal, has adopted a completely different strategy by asserting, for the first time, that the request to schedule an EUO was untimely, since the scheduling letter was mailed 39 days after receipt of the initial bill and 38 days after receipt of the third bill. Nothing in plaintiff’s submissions before the Civil Court makes any mention of the timeliness of the EUO letters. To the contrary, the focus of plaintiff’s arguments was the manner and mechanism of defendant’s mailing procedures. To consider plaintiff’s newly asserted argument on appeal not only ignores well-established rules of preservation, but undermines considerations of fundamental fairness.

It is a longstanding appellate practice principle that an issue raised for the first time on appeal will not be addressed (see Opalinski v City of New York, 110 AD3d 694, 696 [2013]; Libeson v Copy Realty Corp., 167 AD2d 376 [1990]; Block v Magee, 146 AD2d 730 [1989]). Where, as here, a party had the opportunity to raise an issue in the motion court, but failed to do so, the court should refrain from giving that party another opportunity to prevail on an issue by advancing a new legal theory (see generally Matter of Matarrese v New York City Health & Hosps. Corp., 247 AD2d 475 [1998]). Here, plaintiff has raised the timeliness of the EUO in its brief for the first time on appeal without stating any explanation for the failure to raise it in the Civil Court. By addressing an unpreserved issue, we are reversing a judge who never had an opportunity to rule on the issue, encouraging litigants to raise issues for the first time on appeal and exhausting the limited resources available in our appellate courts, given their overloaded case load. We should limit the scope of our review to address issues properly before us. For these reasons, I urge my colleagues to refrain from this practice, and I vote to affirm the order, insofar as appealed from.

Law Offices of Tobias & Kuhn (Michael V. Dimartini and Alina Worthalter-Green of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Michael Gerstein, J.), entered June 7, 2017. The order, insofar as appealed from and as limited by the brief, implicitly denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground of lack of coverage, in that defendant had, prior to the accident at issue, cancelled the policy for nonpayment of the premium. Defendant appeals, as limited by the brief, from so much of an order of the Civil Court entered June 7, 2017 as implicitly denied defendant’s cross motion.

Upon a review of the record, we find that defendant sufficiently established that, in [*2]accordance with Vehicle and Traffic Law § 313 (1), defendant had mailed the policy cancellation letter to the insured, with a cancellation date that was effective prior to the accident, and that defendant had filed a copy of the notice of cancellation with the Department of Motor Vehicles (DMV) within 30 days of the effective date of the cancellation, pursuant to Vehicle and Traffic Law § 313 (2) (a) (see Bullock v Hanover Ins. Co., 144 AD2d 416, 417 [1988]; cf. Matter of Progressive Classic Ins. Co. v Kitchen, 46 AD3d 333 [2007]; Matter of Material Damage Adj. Corp. v King, 1 AD3d 439 [2003]; Art of Healing Medicine, P.C. v Allstate Ins. Co., 54 Misc 3d 46 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Thus, defendant has demonstrated that the cancellation is effective with respect to plaintiff’s assignor, who was not the named insured or a member of the insured’s household (see Vehicle and Traffic Law § 313 [3]; Matter of Liberty Mut. Ins. Co. v Vidale, 207 AD2d 489 [1994] [in which the insurance policy was cancelled effective May 16, 1991, the accident occurred on June 1, 1991, and the insurer sent notice of the policy cancellation to the DMV on June 10, 1991, and the court held that the insurer had met its burden of proving that its policy was validly cancelled as to the third parties]). Consequently, defendant should have been awarded summary judgment dismissing the complaint.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.

PESCE, P.J., WESTON and SIEGAL, JJ., concur.

Decided on October 25, 2019

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

Decided on October 25, 2019

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

Decided on October 25, 2019

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

Decided on October 25, 2019

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

Decided on October 25, 2019

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