Longevity Med. Supply, Inc. v. Farmington Cas. Co.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 11, 2019
• Docket: 2019 NYSlipOp 51626(U)
• Status: Published

Opinion

Longevity Medical Supply, Inc., as Assignee of McLaughlin, Angella, Appellant,

against

Farmington Casualty Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell and Karina Barska of counsel), for appellant. Law Office of Aloy O. Ibuzor (Gina M. Spiteri of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Louis L. Nock, J.), entered December 19, 2017. 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 had failed to appear for duly scheduled examinations under oath, and denied plaintiff's cross motion for summary judgment.

Plaintiff's sole argument as to defendant's motion for summary judgment 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 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]; 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]). Consequently, plaintiff has demonstrated no basis to disturb the order which granted defendant's motion and denied plaintiff's cross motion.

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 11, 2019