September 8, 2017

Laga v Country Wide Ins. Co. (2017 NY Slip Op 51155(U))

Headnote

The main issue in this case was whether the denial of claim forms had been properly mailed by the defendant insurance company. The court considered the proof submitted by the defendant in support of its cross-motion, which was found to be sufficient to give rise to a presumption that the denial of claim forms had been properly mailed. The plaintiff's argument with respect to the defendant's cross-motion was also considered, but ultimately not properly before the court as it was being raised for the first time on appeal. As a result, the court affirmed the order, denying the plaintiff's motion for summary judgment and granting the defendant's cross-motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Laga v Country Wide Ins. Co. (2017 NY Slip Op 51155(U))

Laga v Country Wide Ins. Co. (2017 NY Slip Op 51155(U)) [*1]

Laga v Country Wide Ins. Co.

2017 NY Slip Op 51155(U) [57 Misc 3d 128(A)]

Decided on September 8, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 8, 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
2014-1960 Q C

Adelaida M. Laga, PT, as Assignee of St. Juliette, Warny, Appellant,
against
Country Wide Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered July 31, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross 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 denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s argument, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the denial of claim forms at issue had been properly mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Plaintiff’s remaining argument with respect to defendant’s cross motion is not properly before this court, as it is being raised for the first time on appeal, and we decline to consider it (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Mind & Body Acupuncture, P.C. v Elrac, [*2]Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order is affirmed.

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

Paul Kenny
Chief Clerk
Decision Date: September 08, 2017