November 1, 2016

TAM Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 51624(U))

Headnote

The court considered an appeal from an order of the Civil Court of the City of New York, Queens County denying the plaintiff's motion for summary judgment and granting the defendant's cross motion for summary judgment dismissing the complaint. The main issue decided was whether the letters scheduling the independent medical examinations were addressed properly. The court held that the argument about the letters being addressed improperly was not properly before the court as it was being raised for the first time on appeal, and therefore declined to consider it. As a result, the court affirmed the order denying the plaintiff's motion and granting the defendant's cross motion.

Reported in New York Official Reports at TAM Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 51624(U))

TAM Med. Supply Corp. v American Tr. Ins. Co. (2016 NY Slip Op 51624(U)) [*1]

TAM Med. Supply Corp. v American Tr. Ins. Co.

2016 NY Slip Op 51624(U) [53 Misc 3d 148(A)]

Decided on November 1, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 1, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-514 Q C

TAM Medical Supply Corp., as Assignee of MARIAMA SOW, Appellant,
against
American Transit Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered February 6, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

On appeal, plaintiff argues that the letters scheduling the independent medical examinations were addressed improperly because they included an apartment number. However, that 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]; 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]). Consequently, plaintiff has demonstrated no basis to disturb the order which denied plaintiff’s motion and granted defendant’s cross motion.

Accordingly, the order is affirmed.

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

Decision Date: November 01, 2016