Eagle Surgical Supply, Inc. v Allstate Ins. Co.

[*1] Eagle Surgical Supply, Inc. v Allstate Ins. Co. 2014 NY Slip Op 51798(U) Decided on December 17, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-846 Q C

Eagle Surgical Supply, Inc. as Assignee of CAROL HORTON, Appellant,

against

Allstate Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph E. Capella, J.), entered March 9, 2012, deemed from a judgment of the same court entered March 15, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 9, 2012 order granting defendant's motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff appeals from an order of the Civil Court granting defendant's motion. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

On appeal, plaintiff contends that the EUO scheduling letters were defective because they did not adequately advise plaintiff as to why the EUO was being requested. However, since plaintiff does not claim to have responded in any way to the EUO requests, its objections regarding the EUO requests will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]). In any event, plaintiff's contention lacks merit since the EUO scheduling letters advised that the EUO would concern, among other things, plaintiff's eligibility to be reimbursed for assigned no-fault benefits (see also 2006 Ops Ins Dept No. 06-12-16 [http://www.dfs.ny.gov/insurance/ogco2006/rg061216.htm]).

Plaintiff's remaining contentions are improperly raised for the first time on appeal and, therefore, are not properly before this court (see NYU Hosp. for Joint Diseases v Country Wide Ins. Co., 84 AD3d 1043 [2011]; Matter of Panetta v Carroll, 62 AD3d 1010 [2009]; KPSD Mineola, Inc. v Jahn, 57 AD3d 853, 854 [2008]).

Accordingly, the judgment is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: December 17, 2014