Alleviation Med. Servs., P.C. v Esurance

[*1] Alleviation Med. Servs., P.C. v Esurance 2015 NY Slip Op 51715(U) Decided on November 20, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 20, 2015
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1182 K C

Alleviation Medical Services, P.C. as Assignee of MARC-ALLEN ST. JEAN, Appellant,

against

Esurance, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered February 5, 2013. 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.

Defendant submitted sufficient proof to show that the examination under oath (EUO) scheduling letters and the denial of claim forms, which denied the claims on the ground that plaintiff's assignor had failed to appear for duly scheduled EUOs, had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant further demonstrated that plaintiff's assignor had not appeared for the duly scheduled EUOs and, thus, that plaintiff's assignor had failed to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

In opposition to defendant's motion, plaintiff failed to raise a triable issue of fact. Consequently, defendant's motion for summary judgment dismissing the complaint was properly granted.

We note that 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.

Decision Date: November 20, 2015