Infinite Ortho Prods., Inc. v New York Cent. Mut. Fire Ins. Co.

[*1] Infinite Ortho Prods., Inc. v New York Cent. Mut. Fire Ins. Co. 2016 NY Slip Op 51320(U) Decided on September 15, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 15, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-378 K C

Infinite Ortho Products, Inc., also Known as Infinate Ortho Products, Inc., as Assignee of James Lewis, Appellant,

against

New York Central Mutual Fire Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 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, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint. The motion was based upon the defense that plaintiff's claims had been timely and properly denied on the ground that plaintiff's assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

Plaintiff argues on appeal that the address to which the IME scheduling letters were addressed improperly included an apartment number. However, that argument is not properly before this court, as it was not raised in plaintiff's opposition to defendant's motion, 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]). Furthermore, there is no merit to the arguments raised by plaintiff with respect to the sufficiency of defendant's proof that the IME scheduling letters and denial of claim forms had been timely and properly mailed (see generally St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), or that plaintiff's assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff's remaining contention is without merit.

Accordingly, the order is affirmed.

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

Decision Date: September 15, 2016