May 18, 2018

Preferred Ortho Prods., Inc. v Titan Ins. Co. (2018 NY Slip Op 50732(U))

Headnote

The court considered the issue of whether plaintiff had failed to appear for duly scheduled examinations under oath. Plaintiff argued as to defendant's practices and procedures regarding the mailing of the denial of claim form, but the court found that this argument lacks merit. Plaintiff's remaining argument, being raised for the first time on appeal, was not properly before the court and was declined to be considered. The court affirmed the order granting defendant's motion for summary judgment dismissing the complaint, with $25 costs. The holding of the case was that the order granting defendant's motion for summary judgment was affirmed.

Reported in New York Official Reports at Preferred Ortho Prods., Inc. v Titan Ins. Co. (2018 NY Slip Op 50732(U))

Preferred Ortho Prods., Inc. v Titan Ins. Co. (2018 NY Slip Op 50732(U)) [*1]

Preferred Ortho Prods., Inc. v Titan Ins. Co.

2018 NY Slip Op 50732(U) [59 Misc 3d 144(A)]

Decided on May 18, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 18, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2177 Q C

Preferred Ortho Products, Inc., as Assignee of Mercedes, Luis, Appellant,
against
Titan Insurance Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Gialleonardo, McDonald & Turchetti (Kevon Lewis of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered July 9, 2015. 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 plaintiff had failed to appear for duly scheduled examinations under oath.

Plaintiff’s argument as to defendant’s practices and procedures regarding the mailing of the denial of claim form lacks merit (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff’s remaining argument is not properly before this court, as it 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]; 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]), 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 18, 2018