Compas Med., P.C. v Farmington Cas. Co.

[*1] Compas Med., P.C. v Farmington Cas. Co. 2016 NY Slip Op 50925(U) Decided on June 6, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 6, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2155 Q C

Compas Medical, P.C., as Assignee of EDMOND MONCHAIS, Appellant,

against

Farmington Casualty Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered August 9, 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, the Civil Court granted the branch of defendant's motion seeking summary judgment dismissing, as premature, so much of the complaint as sought to recover upon a claim for $198, because plaintiff had failed to provide requested verification, and granted the branches of defendant's motion seeking summary judgment dismissing the remainder of the complaint due to the failure of plaintiff's assignor to appear for independent medical examinations (IMEs).

In support of the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the $198 claim, defendant demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff's attempt to recover upon this claim is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). As plaintiff failed to raise a triable issue of fact, the Civil Court properly granted the branch of defendant's motion addressed to this claim.

Plaintiff's contention—that defendant failed to establish the mailing of the denial of claims forms, which denied plaintiff's remaining claims due to the failure of plaintiff's assignor to appear for IMEs—lacks merit, as defendant established that the denial of claim forms at issue had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Natural Therapy Acupuncture, P.C. v Travelers Ins. Co., 49 Misc 3d 149[A], 2015 NY Slip Op 51713[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

We note that plaintiff's remaining contention is not properly before this court, as this argument 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]).

Accordingly, the order is affirmed.

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

Decision Date: June 06, 2016