Renelique v Tri State Consumers Ins. Co.

[*1] Renelique v Tri State Consumers Ins. Co. 2016 NY Slip Op 50866(U) Decided on June 3, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 3, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-1709 Q C

Pierre Jean Jacques Renelique, as Assignee of YVON DELGADO, Appellant,

against

Tri State Consumers Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered June 28, 2013. 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, defendant moved for summary judgment dismissing the complaint, arguing that it had fully paid plaintiff in accordance with the workers' compensation fee schedule. The Civil Court granted defendant's motion.

Plaintiff's argument—that defendant is precluded from raising its defense that the fees charged exceeded the amount allowed by the workers' compensation fee schedule because defendant's denial of claim form did not set forth this defense with sufficient particularity—lacks merit (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]). To the extent plaintiff seeks to challenge defendant's calculation of the amount plaintiff was entitled to recover pursuant to the workers' compensation fee schedule, this argument 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]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]). Consequently, plaintiff has demonstrated no basis to disturb the order.

Accordingly, the order is affirmed.

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

Decision Date: June 03, 2016