PARISIEN v. NY CITY TRANSIT AUTHORITY (2018)

Supreme Court, Appellate Term, New York.

Jules Francois PARISIEN, M.D., as Assignee of Makeda Jones, Appellant, v. NY CITY TRANSIT AUTHORITY, Respondent.

2016-1285 K C

Decided: November 23, 2018

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Jones Jones, LLC (Agnes Neiger of counsel), for respondent.

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 on the ground that defendant had not received timely notice of the accident (see 11 NYCRR 65-2.4 [a], [b] ).

Contrary to plaintiff's argument, defendant's proof was sufficient to establish 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] ).

Plaintiff's remaining contention is not properly before this court, as this argument is being raised for the first time on appeal (see Joe v. Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v. Kanen, 13 AD3d 579 [2004] ), and we decline to consider it.

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

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