Art of Healing Medicine, P.C. v Utica Mut. Ins. Co.

[*1] Art of Healing Medicine, P.C. v Utica Mut. Ins. Co. 2016 NY Slip Op 51610(U) Decided on November 1, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2716 Q C

Art of Healing Medicine, P.C., as Assignee of OWEN MINNS, Appellant,

against

Utica Mutual Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered December 3, 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 on the ground that plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs) or, with respect to the sixth cause of action, on the ground of lack of medical necessity.

Contrary to plaintiff's arguments on appeal, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the EUO scheduling letters and the denial of claims forms had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and to demonstrate that plaintiff's assignor had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Plaintiff's remaining contentions are either academic in light of the foregoing or, with respect to the defense of lack of medical necessity, raised for the first time on appeal and, therefore, 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 order is affirmed.

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

Decision Date: November 01, 2016