December 22, 2017

Masigla v Country Wide Ins. Co. (2017 NY Slip Op 51888(U))

Headnote

The relevant facts that the court considered in this case are that the plaintiff, a provider, was seeking to recover assigned first-party no-fault benefits from the defendant, an insurance company. The plaintiff's motion for summary judgment was denied, and the defendant's cross motion for summary judgment was granted by the Civil Court on the basis that the defendant had not received timely notice of the accident. The main issue decided by the court was whether the proof submitted by the defendant was sufficient to give rise to a presumption that the denial of claim forms had been properly mailed. The holding of the case was that the order of the Civil Court denying the plaintiff's motion for summary judgment and granting the defendant's cross motion for summary judgment dismissing the complaint was affirmed. The court found that the proof submitted by the defendant was sufficient, and declined to consider any arguments raised by the plaintiff for the first time on appeal.

Reported in New York Official Reports at Masigla v Country Wide Ins. Co. (2017 NY Slip Op 51888(U))

Masigla v Country Wide Ins. Co. (2017 NY Slip Op 51888(U)) [*1]

Masigla v Country Wide Ins. Co.

2017 NY Slip Op 51888(U) [58 Misc 3d 143(A)]

Decided on December 22, 2017

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 22, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-1528 Q C

Maria S. Masigla, P.T., as Assignee of Cadet, Daniel, Appellant,
against
Country Wide Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered April 29, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross 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 denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that defendant had not received timely notice of the accident.

Contrary to plaintiff’s argument, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the denial of claim forms at issue had been properly mailed (see St.Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff’s remaining argument with respect to defendant’s cross motion 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]; 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]).

Accordingly, the order is affirmed.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 22, 2017