Parisien v. Gallagher Bassett Servs.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 13, 2019
• Docket: 2019 NYSlipOp 52040(U)
• Status: Published

Opinion

Jules Francois Parisien, M.D., as Assignee of Afroz, Ayesha, Appellant,

against

Gallagher Bassett Services, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Bressler, Amery & Ross, P.C. (Christopher Ko of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered January 23, 2018. The order, insofar as appealed from as limited by the brief, granted defendant's motion to consolidate the above-entitled action with 31 other actions and, upon consolidation, to dismiss the actions, to the extent of consolidating the actions for the purposes of disposition and, upon such consolidation, dismissing the above-entitled action.

ORDERED that so much of the appeal as was taken from the portion of the order that granted the branch of defendant's motion seeking consolidation, to the extent of consolidating the actions for the purposes of disposition, is dismissed, as plaintiff is not aggrieved thereby (see CPLR 5511); and it is further,

ORDERED that the order, insofar as appealed from and insofar as reviewed, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant's motion seeking to consolidate the above-entitled action with 31 other actions and, upon consolidation, to dismiss the actions, to the extent of consolidating the actions for the [*2]purposes of disposition and, upon such consolidation, dismissing the above-entitled action.

The Civil Court properly dismissed the action, as there is a lack of coverage because defendant did not issue an insurance policy covering the underlying accident as it is not an insurance company (see Ultimate Health Prods., Inc. v Hereford Ins. Co., 51 Misc 3d 127[A], 2016 NY Slip Op 50367[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]; Flatbush Chiropractic, P.C. v Hereford Ins. Co., 49 Misc 3d 149[A], 2015 NY Slip Op 51712[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). 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, insofar as appealed from and insofar as reviewed, is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 13, 2019