Opinion
No. 2023-647 RI C
06-14-2024
Pak Hong Sik, MD, Medical Care, P.C., as Assignee of Israel Perez, Jr., Appellant, v. Mid-Century Insurance Company, Respondent.
Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant. Law Offices of Buratti, Rothenberg & Burns (Kenneth F. Popper of counsel), for respondent.
Unpublished Opinion
Kopelevich & Feldsherova, P.C. (Galina Feldsherova of counsel), for appellant.
Law Offices of Buratti, Rothenberg & Burns (Kenneth F. Popper of counsel), for respondent.
PRESENT:: WAVNY TOUSSAINT, P.J., CHEREÉ A. BUGGS, LISA S. OTTLEY, JJ
Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary A. Kavanagh, J.), entered May 22, 2023. 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, plaintiff appeals from an order of the Civil Court (Mary A. Kavanagh, J.) which granted defendant's motion for summary judgment dismissing the complaint on the grounds that the policy limits had been exhausted and that, pursuant to the fee schedule, the provider could not recover upon the bills at issue.
Plaintiff correctly argues that defendant failed to lay a sufficient foundation for the payment log, upon which defendant relied, to prove that the payments to plaintiff listed therein had been made (see CPLR 4518 [a]; People v Kennedy, 68 N.Y.2d 569 [1986]; JSJ Anesthesia Pain Mgt., PLLC v Nationwide Ins. Co., 81 Misc.3d 145 [A], 2024 NY Slip Op 50203[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]). To the extent plaintiff argues on appeal that defendant also failed to establish that, pursuant to the fee schedule, plaintiff could not recover upon the bills at issue, such argument was improperly raised for the first time on appeal (see Healthplus Surgery Ctr., LLC v American Tr. Ins. Co., 204 A.D.3d 646 [2022]; Joe v Upper Room Ministries, Inc., 88 A.D.3d 963 [2011]) and we do not consider it.
Plaintiff's remaining contention lacks merit.
Accordingly, the order is affirmed.
TOUSSAINT, P.J., BUGGS and OTTLEY, JJ., concur.