July 27, 2015

Michael Palmeri, M.D., PLLC v Allstate Ins. Co. (2015 NY Slip Op 51130(U))

Headnote

The court considered the appeal from an order of the Civil Court, Queens County, which denied the defendant's motion for summary judgment dismissing the complaint. The main issue decided was whether the defendant's motion for summary judgment was untimely, as it was not made within 60 days of the filing of the notice of trial, as required by the rules of Part 41 of the Civil Court. The holding of the case was that the Civil Court properly denied the defendant's motion as untimely, as they failed to offer any explanation for the delay. The appellate court affirmed the order, stating that arguments or factual assertions raised for the first time on appeal were not considered.

Reported in New York Official Reports at Michael Palmeri, M.D., PLLC v Allstate Ins. Co. (2015 NY Slip Op 51130(U))

Michael Palmeri, M.D., PLLC v Allstate Ins. Co. (2015 NY Slip Op 51130(U)) [*1]

Michael Palmeri, M.D., PLLC v Allstate Ins. Co.

2015 NY Slip Op 51130(U) [48 Misc 3d 136(A)]

Decided on July 27, 2015

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 27, 2015

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-2368 Q C

Michael Palmeri, M.D., PLLC as Assignee of WILDA MAYARD, Respondent,
against
Allstate Insurance Company, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered September 17, 2013. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied, as untimely, defendant’s motion for summary judgment dismissing the complaint.

Defendant failed to make its motion within 60 days of the filing of the notice of trial, as required by the rules of Part 41 of the Civil Court, and failed to offer any explanation in the Civil Court for the untimeliness of its motion. Accordingly, the Civil Court properly denied defendant’s motion as untimely (see CPLR 3212 [a]; Miceli v State Farm Mut. Auto. Ins. Co., 3 NY3d 725 [2004]; Brill v City of New York, 2 NY3d 648 [2004]; Goldin v New York & Presbyt. Hosp., 112 AD3d 578 [2013]; Tong Li v Citiwide Auto Leasing, Inc., 43 Misc 3d 128[A], 2014 NY Slip Op 50481[U] [App Term, 2d, 11th & 13th Jud Dists 2014]; Exceptional Med. Care, P.C. v Fiduciary Ins. Co., 43 Misc 3d 75 [App Term, 2d, 11th & 13th Jud Dists 2014]).

We note that we do not consider arguments or factual assertions raised for the first time on appeal (see Chimarios v Duhl, 152 AD2d 508 [1989]).

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Elliot, JJ., concur.

Decision Date: July 27, 2015