Opinion
No. 2019-1357 K C
08-05-2022
ACH Chiropractic, P.C., as Assignee of Ferril, Gabriel J., Appellant, v. Nationwide Ins., Respondent.
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Hollander Legal Group, P.C. (Allan Hollander of counsel), for respondent.
Unpublished Opinion
The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant.
Hollander Legal Group, P.C. (Allan Hollander of counsel), for respondent.
PRESENT:: THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), dated June 28, 2019. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment.
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), and denied plaintiff's cross motion for summary judgment.
Contrary to plaintiff's contention on appeal, defendant established that plaintiff's assignor had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 A.D.3d 720 [2006]).
Plaintiff's remaining argument is not properly before this court as it is being raised for the first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 A.D.3d 963 [2011]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc.3d 139 [A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).
Accordingly, the order is affirmed.
ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.