December 13, 2019

Sheepshead Bay Oral Surgery, PLLC v Unitirin Direct Ins. Co. (2019 NY Slip Op 52028(U))

Headnote

The relevant facts the court considered in this case were that the plaintiff, Sheepshead Bay Oral Surgery, PLLC, was seeking to recover assigned first-party no-fault benefits, and the defendant, Unitirin Direct Ins. Co., moved to dismiss the complaint on the ground that the action was barred by the statute of limitations. The main issue decided by the court was whether the plaintiff's cause of action was timely commenced, as the defendant demonstrated that the cause of action accrued 30 days after the defendant received the plaintiff's claim, and the plaintiff did not rebut that showing. The holding of the court was that the defendant's motion to dismiss the complaint was affirmed, with $25 costs, as the plaintiff's cause of action was not timely commenced and the contention that the defendant should be collaterally estopped from asserting a statute of limitations defense lacked merit. The court also declined to consider the plaintiff's remaining contention, as it was being raised for the first time on appeal.

Reported in New York Official Reports at Sheepshead Bay Oral Surgery, PLLC v Unitirin Direct Ins. Co. (2019 NY Slip Op 52028(U))

Sheepshead Bay Oral Surgery, PLLC v Unitirin Direct Ins. Co. (2019 NY Slip Op 52028(U)) [*1]

Sheepshead Bay Oral Surgery, PLLC v Unitirin Direct Ins. Co.

2019 NY Slip Op 52028(U) [66 Misc 3d 126(A)]

Decided on December 13, 2019

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This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2019

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2016-3149 K C

Sheepshead Bay Oral Surgery, PLLC, as Assignee of Joiliette Davis, Appellant,
against
Unitirin Direct Ins. Co., Respondent.

Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Goldberg Miller & Rubin (Harlan R. Schreiber of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered November 9, 2016. The order granted defendant’s motion to dismiss 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 to dismiss the complaint pursuant to CPLR 3211 (a) (5) on the ground that the action was barred by the statute of limitations.

Defendant demonstrated that plaintiff’s cause of action accrued 30 days after defendant received plaintiff’s claim and plaintiff did not rebut that showing (see DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). As a result, plaintiff’s cause of action was not timely commenced (see CPLR 213 [2]; DJS Med. Supplies, Inc., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U]).

Plaintiff’s contention that defendant should be collaterally estopped from asserting a [*2]statute of limitations defense lacks merit since, among other things, the Civil Court order upon which plaintiff relies denied a motion by defendant and was not a conclusive final determination (see generally Metro Health Prods., Inc. v Nationwide Ins., 48 Misc 3d 85 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Plaintiff’s remaining contention is not properly before this court, as the 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 SIEGAL, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk
Decision Date: December 13, 2019