December 12, 2006

Vista Surgical Supplies, Inc. v American Tr. Ins. Co. (2006 NY Slip Op 52470(U))

Headnote

The relevant facts the court considered were that the plaintiff, Vista Surgical Supplies, Inc., was seeking to recover assigned, first-party no-fault benefits from the defendant, American Transit Insurance Co. The main issue decided was whether the plaintiff had submitted the subject claim form to the defendant, as required in a no-fault benefits case. The court held that the plaintiff did not establish that the claim form had been submitted to the defendant, and that the evidence presented by the plaintiff's counsel in a reply affirmation was inadmissible and improperly introduced. Therefore, the court affirmed the lower court's decision to deny the plaintiff's motion for summary judgment.

Reported in New York Official Reports at Vista Surgical Supplies, Inc. v American Tr. Ins. Co. (2006 NY Slip Op 52470(U))

Vista Surgical Supplies, Inc. v American Tr. Ins. Co. (2006 NY Slip Op 52470(U)) [*1]

Vista Surgical Supplies, Inc. v American Tr. Ins. Co.

2006 NY Slip Op 52470(U) [14 Misc 3d 127(A)]

Decided on December 12, 2006

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This opinion is uncorrected and will not be published in the printed Official Reports.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 12, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., GOLIA and BELEN, JJ
2005-1996 K C.

Vista Surgical Supplies, Inc. A/A/O GEORGINA ACOSTA, Appellant,
against
American Transit Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered November 7, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

“The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see, Zuckerman v City of New York,
49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see also Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In this action to recover assigned, first-party no-fault benefits, plaintiff’s moving papers did not establish that plaintiff ever submitted the subject claim form to defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). To the extent plaintiff’s counsel submitted a reply affirmation in which counsel attempted to introduce a purported verification request allegedly sent by defendant to plaintiff in an attempt to demonstrate, for the first time, a critical element of plaintiff’s prima facie case, such evidence was neither in admissible form nor properly before the court (see Canter v East Nassau Med. Group, 270 AD2d 381 [2000]; Fischer v Edward M. Weiland M.D.,
P.C., 241 AD2d 439 [1997]; Ritt v Lenox Hill Hosp., 182 AD2d 560 [1992]). As a result,plaintiff’s motion for summary judgment was properly denied. [*2]

Pesce, P.J., Golia and Belen, JJ., concur.