Parisien v. NY City Tr. Auth.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 23, 2018
• Docket: 2018 NYSlipOp 51699(U)
• Status: Published

Opinion

Jules Francois Parisien, M.D., as Assignee of Makeda Jones, Appellant,

against

NY City Transit Authority, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Jones Jones, LLC (Agnes Neiger of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered April 13, 2016. The order granted defendant's motion for summary judgment dismissing the complaint.

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 defendant had not received timely notice of the accident (see 11 NYCRR 65-2.4 [a], [b]).

Contrary to plaintiff's argument, defendant's proof was sufficient to establish that the denial of claim forms at issue had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Plaintiff's remaining contention is not properly before this court, as this 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., ALIOTTA and ELLIOT, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 23, 2018