J.C. Healing Touch Rehab, P.C. v. MVAIC

J.C. Healing Touch Rehab, P.C. v MVAIC (2022 NY Slip Op 51256(U)) [*1] J.C. Healing Touch Rehab, P.C. v MVAIC 2022 NY Slip Op 51256(U) [77 Misc 3d 134(A)] Decided on December 2, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 2, 2022 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, CHEREÉ A. BUGGS, JJ 2022-109 K C J.C. Healing Touch Rehab, P.C., as Assignee of Zapata Natividad, Appellant, against MVAIC, Respondent. The Rybak Firm, PLLC (Damin J. Toell and Richard Rozhik of counsel), for appellant. Marshall & Marshall, PLLC (Frank D'Esposito of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Rupert V. Barry, J.), entered September 26, 2020. 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, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the complaint on the ground, among others, that the action had been commenced after the statute of limitations had expired, and plaintiff cross-moved for summary judgment. The Civil Court granted defendant's motion finding, among other things, that the statute of limitations had expired before the action was commenced, and denied plaintiff's cross motion. Plaintiff's sole contention on appeal with respect to the statute of limitations is improperly 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, in any event, lacks merit (see Kings Highway Diagnostic Imaging, P.C. v MVAIC, 19 Misc 3d 69 [App Term, 2d Dept, 2d & 11th Jud Dists [*2]2008]; see also 6D Farm Corp. v Carr, 63 AD3d 903 [2009]). Accordingly, the order is affirmed. ALIOTTA, P.J., TOUSSAINT and BUGGS, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: December 2, 2022