Pavlova v. Citiwide Auto Leasing

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 3, 2019
• Docket: 2019 NYSlipOp 50694(U)
• Status: Published

Opinion

Ksenia Pavlova, D.O., as Assignee of Solomon, Darnell, Appellant,

against

Citiwide Auto Leasing, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Miller, Leiby & Associates, P.C. (Evan Mizrahi of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered February 2, 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's assignor had failed to appear for duly scheduled independent medical examinations (IMEs) and denied plaintiff's cross motion for summary judgment.

Contrary to plaintiff's arguments, defendant's proof sufficiently established the proper mailing of the IME scheduling letters (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff's assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

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: May 03, 2019