December 19, 2017

Beal-Medea Prods., Inc. v ELRAC, Inc. (2017 NY Slip Op 51793(U))

Headnote

The defendant's summary judgment motion asserting nonreceipt of the claim was upheld, and the provider's cross motion remained denied. The Appellate Term, Second Department, affirmed because the provider failed to raise a triable issue as to mailing of the claim, citing Zuckerman v City of New York. The provider's remaining contention was first raised on appeal and also lacked merit.

Reported in New York Official Reports at Beal-Medea Prods., Inc. v ELRAC, Inc. (2017 NY Slip Op 51793(U))

[*1]
Beal-Medea Prods., Inc. v ELRAC, Inc.
2017 NY Slip Op 51793(U) [58 Misc 3d 134(A)]
Decided on December 19, 2017
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This opinion is uncorrected and will not be published in the printed Official Reports.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 19, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-273 K C

Beal-Medea Products, Inc., as Assignee of Alexander Atiba, Appellant,

against

ELRAC, Inc., Doing Business as Enterprise Rent-A-Car, Respondent.


Gary Tsirelman, P.C. (Daniel Grace, Esq.), for appellant. Brand, Glick & Brand, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered November 3, 2014. 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 it had never received the claim at issue, and denied plaintiff’s cross motion for summary judgment.

Contrary to plaintiff’s argument, plaintiff failed to raise a triable issue of fact as to whether it had mailed the claim at issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Plaintiff’s remaining contention is improperly raised for the first time on appeal and, in any event, lacks merit.

Accordingly, the order is affirmed.

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


ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 19, 2017

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