Commissioner of State Ins. Fund v Ramsay

[*1] Commissioner of State Ins. Fund v Ramsay 2020 NY Slip Op 50499(U) Decided on May 1, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2020
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, BERNICE D. SIEGAL, JJ
2018-1976 K C

Commissioner of the State Insurance Fund, Respondent,

against

Frank Ramsay, Doing Business as MD & B Construction, Appellant.

Frank Ramsay, d/b/a MD & B Construction, appellant pro se. Smith, Carroad, Levy & Wan, P.C. (Christine Medlock and Kevin Knab of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Cenceria P. Edwards, J.), entered May 4, 2018. The order, insofar as appealed from, denied defendant's motion to dismiss the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this action, plaintiff, Commissioner of the State Insurance Fund, seeks to recover the principal sum of $8,624.07, representing defendant's allegedly unpaid workers' compensation premiums. The complaint alleges that, at defendant's request, plaintiff issued a policy of insurance for which defendant agreed to pay premiums based upon payroll, as provided by the Workers' Compensation Law, which policy is self-renewing on an annual basis. Defendant interposed an answer alleging that no money was owing to plaintiff and that the debt had been paid. Plaintiff subsequently moved for summary judgment, and defendant moved to dismiss the complaint on the ground, among others, that the policy had expired in February 2013 and had not been renewed. The Civil Court denied both motions. Defendant appeals from so much of the order as denied his motion.

It should be noted that, while defendant's motion was referred to as a motion to dismiss, the motion was made after defendant interposed an answer; hence, it was a CPLR 3212 (a) motion for summary judgment that was based upon the CPLR 3211 (a) (5) ground that payment to plaintiff had been made, which ground had been asserted in defendant's answer (see Matter of Andrews v State of New York, 138 AD3d 1297, 1298 n 1 [2016]; JP Morgan Chase Bank, N.A. v Johnson, 129 AD3d 914,915 [2015]; Chenango Contr., Inc. v Hughes Assoc., 128 AD3d 1150, 1151[2015]).

Defendant challenged, among other things, the dates that plaintiff stated the insurance policy was in effect, claiming that plaintiff's assertion of the coverage term was incorrect. While defendant stated that he had fully paid the policy, which, he asserted, had expired on February 22, 2013, and that he had cancelled the policy pursuant to the terms set forth in the insurance contract prior to the assessment of the premiums being sued for, plaintiff contended that the policy had automatically renewed on February 22, 2013 and that it was plaintiff which had cancelled the policy effective on March 28, 2013, based on defendant's nonpayment. In support of his motion, defendant failed to establish, as a matter of law, either that the premium being sued upon had been paid or that the policy had expired prior to or on the date that he claimed and, thus, that no premium was due thereafter. Consequently, defendant's motion was properly denied.

Defendant's remaining 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]; 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]).

Accordingly, the order, insofar as appealed from, is affirmed.

ALIOTTA, P.J., WESTON and SIEGAL, JJ., concur.

ENTER:

Paul Kenny

Chief Clerk
Decision Date: May 1, 2020