October 20, 2017

Olmeur Med., P.C. v ELRAC, Inc. (2017 NY Slip Op 51407(U))

Headnote

The defendant's summary judgment dismissal for nonreceipt of the claim was affirmed after the provider failed to raise a mailing issue of fact. The Appellate Term, Second Department, found no triable issue whether the provider mailed the claim, citing Zuckerman v City of New York. It also rejected the remaining contentions as first raised on appeal and, in any event, meritless.

Reported in New York Official Reports at Olmeur Med., P.C. v ELRAC, Inc. (2017 NY Slip Op 51407(U))

[*1]
Olmeur Med., P.C. v ELRAC, Inc.
2017 NY Slip Op 51407(U) [57 Misc 3d 143(A)]
Decided on October 20, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 20, 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
2014-1919 K C

Olmeur Medical, P.C., as Assignee of Geneva Williams, Appellant,

against

ELRAC, Inc., d/b/a Enterprise Rent-A-Car, Respondent.


Gary Tsirelman, P.C. (Daniel Grace, Esq.), for appellant. Brand, Glick & Brand, P.C. (Jason P. Bertuna, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered May 20, 2013. 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 which granted defendant’s motion for summary judgment dismissing the complaint on the ground that defendant had never received the claim at issue.

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 contentions are improperly raised for the first time on appeal and, in any event, lack merit.

Accordingly, the order is affirmed.

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


ENTER:
Paul Kenny
Chief Clerk
Decision Date: October 20, 2017

Similar decisions