NY Appeals Court Again Decides Issue Not Raised on Appeal: Bronx Med. Diagnostic, P.C. v Hereford Ins. Co., 2019 NY Slip Op 51793(U).

• Author: Rogak, Lawrence N.

* New York's Appellate Term, Second Department, has again considered an issue raised by a plaintiff for the first time on appeal--a violation of basic appellate practice--and decided it, once again, in the plaintiff's favor. But the dissenting judge delivered a scathing rebuke.

This lawsuit was brought by a No-Fault provider. Its claims were denied by the insurer on the grounds of EUO no-show. Both sides moved for summary judgment and the Civil Court ruled in favor of the insurer. Plaintiff appealed. On appeal, plaintiff raised, for the first time, the argument that defendant's first EUO scheduling letter was sent late.

The Appellate Term held, "While plaintiff may have made a specific assertion, that defendant failed to establish that it had timely sought verification in the form of an EUO, for the first time on appeal, we, nonetheless, reach this issue as it is a question of law apparent on the face of the record, which could not have been avoided if raised at the proper juncture."

"Plaintiff correctly argues that defendant's cross-moving papers failed to establish, as a matter of law, that the first EUO scheduling letter defendant sent to plaintiff had been timely, as defendant's affiant stated that the letter had been mailed more than 30 days after defendant had received the claims at issue... In view of the foregoing, defendant failed to demonstrate its entitlement to summary judgment based upon plaintiff's failure to comply with a condition precedent to coverage."

The Court reversed the order which had granted summary judgment to defendant.

The dissenting judge wrote:

"Plaintiff, for the first time on appeal, challenges defendant's EUO scheduling letter as untimely. Since plaintiff never raised this issue in the Civil Court, the issue is not preserved for appellate review, and I see no reason to review it in the interest of justice. Accordingly, I vote to affirm the order, insofar as appealed from."

"With regard to the EUO scheduling letters, plaintiff challenged the sufficiency of the affidavit to establish the protocol for mailing scheduling letters. Plaintiff's contention in the Civil Court was that the dates were not legible on the mailing receipts for the first letter, that the second letter contained a typographical error, and that a signed return receipt was not attached to the papers. Although these were the only arguments advanced by plaintiff concerning the letters, plaintiff now, on appeal, has adopted a completely...