OCEAN ONE PHYSICAL THERAPY v. 21ST CENTURY CENTENNIAL INSURANCE COMPANY (2019)

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.

Plaintiff's contention that defendant failed to establish that its time to pay or deny the claims at issue were tolled lacks merit. While plaintiff correctly contends that the letters annexed to defendant's motion as Exhibit “D” were delay letters which failed to toll defendant's time to pay or deny the claims, defendant's motion also included copies of the EUO scheduling letters mailed by the law firm retained by defendant to conduct the EUOs, and plaintiff has raised no issue with respect to the sufficiency of those letters (see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Great Health Care Chiropractic, P.C. v. Nationwide Ins., 46 Misc 3d 130[A], 2014 NY Slip Op 51812[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014] ). Plaintiff's remaining contention is not properly before this court, as the argument is being raised for the first time on appeal (see Joe v. Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v. Kanen, 13 AD3d 579 [2004]), and we decline to consider it.

Accordingly, the order is affirmed.

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