Mid Atl. Med., P.C. v Electric Ins. Co. (2009 NY Slip Op 52597(U))

SUPREME COURT OF THE STATE OF NEW YORK

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered February 26, 2008. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order which denied its motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to submit a timely notice of claim (Insurance Department Regulations [11 NYCRR] § 65-1.1) and that plaintiff had failed to provide a “reasonable justification of the failure to give timely notice” (Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]).

On appeal, plaintiff contends that defendant is not entitled to summary judgment because the affidavit of defendant’s no-fault adjuster is inadmissible inasmuch as it failed to comply with CPLR 2309 (c). However, as this contention is raised for the first time on appeal, it is waived (see Mani Med., P.C. v NY Cent. Mut. Ins. Co., 19 Misc 3d 128[A], 2008 NY Slip Op 50508[U] [App Term, 2d & 11th Jud Dists 2008]; Infinity Health Prods. Ltd. v State Farm Mut. Auto. Ins. Co., 16 Misc 3d 135[A], 2007 NY Slip Op 51611[U] [App Term, 2d & 11th Jud Dists 2007]). Plaintiff further argues that defendant is precluded from relying upon plaintiff’s untimely notice of claim because defendant’s denial of claim form did not advise plaintiff that “late notice will be excused where the applicant can provide reasonable justification of the failure to give timely notice,” as required by Insurance Department Regulations (11 NYCRR) § 65-3.3 (e). Said issue was likewise raised for the first time on appeal, as it differs from plaintiff’s contention in the Civil Court, which did not challenge the sufficiency of defendant’s denial of claim form but, [*2]rather, asserted that defendant did not demonstrate that plaintiff had failed to
provide a reasonable justification for the untimely notice of claim. Consequently, this contention by plaintiff is similarly waived. Accordingly, the order is affirmed.

Golia, J.P., Pesce and Weston, JJ., concur.
Decision Date: December 15, 2009