Sheepshead Bay Oral Surgery, PLLC v. Unitirin Direct Ins. Co.

Sheepshead Bay Oral Surgery, PLLC, as Assignee of Joiliette Davis, Appellant, against Unitirin Direct Ins. Co., Respondent. Kopelevich & Feldsherova, P.C. (David Landfair of counsel), for appellant. Goldberg Miller & Rubin (Harlan R. Schreiber of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered November 9, 2016. The order granted defendant's motion to dismiss 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 granted defendant's motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) on the ground that the action was barred by the statute of limitations. Defendant demonstrated that plaintiff's cause of action accrued 30 days after defendant received plaintiff's claim and plaintiff did not rebut that showing (see DJS Med. Supplies, Inc. v Clarendon Natl. Ins. Co., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). As a result, plaintiff's cause of action was not timely commenced (see CPLR 213 [2]; DJS Med. Supplies, Inc., 32 Misc 3d 129[A], 2011 NY Slip Op 51304[U]). Plaintiff's contention that defendant should be collaterally estopped from asserting a [*2]statute of limitations defense lacks merit since, among other things, the Civil Court order upon which plaintiff relies denied a motion by defendant and was not a conclusive final determination (see generally Metro Health Prods., Inc. v Nationwide Ins., 48 Misc 3d 85 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Plaintiff's remaining contention is not properly before this court, as the 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 SIEGAL, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: December 13, 2019