Parisien v. Metlife Auto & Home

Parisien v Metlife Auto & Home (2022 NY Slip Op 50577(U)) [*1] Parisien v Metlife Auto & Home 2022 NY Slip Op 50577(U) [75 Misc 3d 138(A)] Decided on June 10, 2022 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., MICHELLE WESTON, WAVNY TOUSSAINT, JJ 2020-172 K C Jules Francois Parisien, M.D., as Assignee of Phucien, Fritz G., Appellant, against Metlife Auto & Home, Respondent. The Rybak Firm, PLLC (Damien J. Toell and Richard Rozhik of counsel), for appellant. Bruno, Gerbino, Soriano & Aitken, LLP (Susan B. Eisner of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Ira R. Greenberg, J.), entered October 7, 2019. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment. 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 plaintiff had failed to appear for duly scheduled examinations under oath, and denied plaintiff's cross motion for summary judgment. Plaintiff's sole argument as to defendant's motion for summary judgment 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 granted defendant's motion and denied plaintiff's cross motion. Accordingly, the order is affirmed. ALIOTTA, P.J., WESTON and TOUSSAINT, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: June 10, 2022