May 8, 2009

Vista Surgical Supplies, Inc. v Liberty Mut. Ins. Co. (2009 NY Slip Op 52500(U))

Headnote

The main issues in this case were whether the defendant had established the mailing of verification requests and whether the action was premature due to plaintiff's failure to respond to verification requests. The court considered the affidavit of the defendant's claims specialist, who attested to the mailing of the verification requests, and determined that it was sufficient to establish the mailing. The court also considered the plaintiff's argument that the defendant failed to demonstrate personal knowledge of the mailing or set forth defendant's standard office practices and procedures, but found that the affidavit was adequate. The holding of the case was that the order, insofar as appealed from, was affirmed, and the defendant's cross motion for summary judgment dismissing the complaint was granted.

Reported in New York Official Reports at Vista Surgical Supplies, Inc. v Liberty Mut. Ins. Co. (2009 NY Slip Op 52500(U))

Vista Surgical Supplies, Inc. v Liberty Mut. Ins. Co. (2009 NY Slip Op 52500(U)) [*1]

Vista Surgical Supplies, Inc. v Liberty Mut. Ins. Co.

2009 NY Slip Op 52500(U) [25 Misc 3d 142(A)]

Decided on May 8, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 8, 2009

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., GOLIA and STEINHARDT, JJ
2007-1326 K C.

Vista Surgical Supplies, Inc. a/a/o MARTHA EDWARDS, Appellant,
against
Liberty Mutual Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), dated July 23, 2007. The order, insofar as appealed from as limited by the brief, granted defendant’s cross motion for summary judgment.

Order, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff failed to respond to verification requests. The Civil Court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion. Plaintiff appeals, as limited by its brief, from so much of the order as granted defendant’s cross motion.

On appeal, plaintiff argues that defendant failed to establish the mailing of the verification requests because the affidavit of defendant’s claims specialist did not demonstrate personal knowledge of such mailing or set forth defendant’s standard office practices and procedures used to ensure that such requests are properly addressed and mailed. Contrary to plaintiff’s contention, the affidavit of defendant’s claims specialist sufficiently established the mailing of the verification requests (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]).

Plaintiff’s remaining contentions either lack merit or are improperly raised for the first time on appeal.

Accordingly, the order, insofar as appealed from, is affirmed.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: May 08, 2009