December 17, 2014

Boris Kleyman Physician, P.C. v IDS Prop. Cas. Ins. Co. (2014 NY Slip Op 51810(U))

Headnote

The main issue in this case was whether the provider had standing to receive reimbursement of first-party no-fault benefits without annexing a copy of the assignment of benefits form executed by its assignor. The court held that the provider did have standing, as the claim forms received by the defendant stated that the assignor had executed an assignment and defendant was advised that the signature was "on file.” The court also stated that the defendant’s remaining argument was not properly before the court and lacked merit. Therefore, the judgment granting the plaintiff’s motion for summary judgment and denying the defendant’s cross motion for summary judgment was affirmed.

Reported in New York Official Reports at Boris Kleyman Physician, P.C. v IDS Prop. Cas. Ins. Co. (2014 NY Slip Op 51810(U))

Boris Kleyman Physician, P.C. v IDS Prop. Cas. Ins. Co. (2014 NY Slip Op 51810(U)) [*1]

Boris Kleyman Physician, P.C. v IDS Prop. Cas. Ins. Co.

2014 NY Slip Op 51810(U) [46 Misc 3d 129(A)]

Decided on December 17, 2014

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This opinion is uncorrected and will not be published in the printed Official Reports.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 17, 2014

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1326 Q C

Boris Kleyman Physician, P.C. as Assignee of JAMAAL AGARD, Respondent,
against
IDS Property Casualty Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered May 3, 2012, deemed from a judgment of the same court entered May 18, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 3, 2012 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,438.92.

ORDERED that the judgment is affirmed, with $25 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 granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Defendant’s contention that plaintiff did not establish that it has standing to receive reimbursement of the first-party no-fault benefits to which its assignor is entitled because plaintiff failed to annex a copy of the assignment of benefits form executed by its assignor 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]). In any event, since the claim forms received by defendant stated that plaintiff’s assignor had executed an assignment and, as in Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (9 NY3d 312, 319-320 [2007]), defendant was advised that the signature on the assignment was “on file,” defendant’s contention is devoid of merit (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 319-320 [2007]).

Defendant’s remaining argument is likewise not properly before this court, as this argument is also being raised for the first time on appeal (see Joe, 88 AD3d 963) and, in any event, this argument lacks merit (cf. Radiology Today, P.C. v Mercury Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50148[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the judgment is affirmed.

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

Decision Date: December 17, 2014