January 26, 2007

Vista Surgical Supplies, Inc. v Electric Ins. Co (2007 NY Slip Op 50150(U))

Headnote

The court considered the appeal from an order of the Civil Court of the City of New York, Kings County, which had granted the plaintiff's motion for summary judgment and denied the defendant's cross motion for summary judgment. The main issue in this action to recover assigned first-party no-fault benefits was whether the defendant had established timely mailing of its denial forms. The holding of the court was that the defendant failed to establish timely mailing of its denial forms, as the affidavit of its claims processor did not provide a sufficiently detailed description of the standard office mailing procedure to give rise to the presumption of mailing. Additionally, the defendant's additional affidavits produced for the first time in its papers submitted in reply to the plaintiff's opposition were disregarded by the court and may not be considered on appeal, thus defendant was precluded from raising the defense asserted. Therefore, the order of the Civil Court of the City of New York, Kings County, was affirmed without costs.

Reported in New York Official Reports at Vista Surgical Supplies, Inc. v Electric Ins. Co (2007 NY Slip Op 50150(U))

Vista Surgical Supplies, Inc. v Electric Ins. Co (2007 NY Slip Op 50150(U)) [*1]

Vista Surgical Supplies, Inc. v Electric Ins. Co

2007 NY Slip Op 50150(U) [14 Misc 3d 134(A)]

Decided on January 26, 2007

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This opinion is uncorrected and will not be published in the printed Official Reports.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 January 26, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and BELEN, JJ
2005-1783 K C.

Vista Surgical Supplies, Inc. A/A/O KAMBAKHSH TAVAKOLI, Respondent,
against
Electric Insurance Co, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered October 13, 2005. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, we do not pass on the propriety of the determination of the court below that plaintiff established its prima facie case, as defendant raises no issue with respect thereto.

Defendant failed to establish timely mailing of its denial forms. The affidavit of its claims processor neither alleged a mailing nor “a sufficiently detailed description of defendant’s standard office mailing procedure so as to give rise to the presumption of
mailing” (AVA Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 140[A], 2006 NY Slip Op 52256[U] [App Term, 2d & 11th Jud Dists]; see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Vista Surgical Supplies, Inc. v Nationwide Mut. Ins. Co., 12 Misc 3d 147[A], 2006 NY Slip Op 51556[U] [App Term, 2d & 11th Jud Dists]). While defendant’s additional affidavits, produced for the first time in defendant’s papers submitted in reply to plaintiff’s opposition to its cross motion, may have established a timely mailing of its denial forms, they were properly disregarded by the court below and may not be considered on appeal (Rubens v [*2]Fund, 23 AD3d 636, 637 [2005]; Lazar v Nico Indus., 128 AD2d 408, 409-410 [1987]; Executive MRI Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 140[A], 2006 NY Slip Op 52250[U] [App Term, 2d & 11th Jud Dists]). Accordingly, defendant was precluded
from raising the defense asserted herein (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

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