Opinion
No. 2012–343 Q C.
2014-05-29
EAGLE SURGICAL SUPPLY, INC. as Assignee of Mikhail Tsukerman, Appellant, v. ALLSTATE PROPERTY & CASUALTY INSURANCE CO., Respondent.
Present: PESCE, P.J., ALIOTTA and SOLOMON, JJ.
Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered November 17, 2011, deemed from a judgment of the same court entered January 20, 2012 (see CPLR 5501[c] ). The judgment, entered pursuant to the November 17, 2011 order granting defendant's motion for summary judgment, dismissed the complaint.
ORDERED that the judgment 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 granted defendant's motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken ( see CPLR 5501[c] ).
Contrary to plaintiff's sole contention on appeal, the affidavits and documents submitted by defendant in support of defendant's motion were sufficient to establish that the denial of claim form had been timely mailed ( see St. Vincent's Hosp. of Richmond v. Government Empls. Ins. Co., 50 A.D.3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v. Chubb Group of Ins., 17 Misc.3d 16, 847 N.Y.S.2d 322 [App Term, 2d & 11th Jud Dists 2007]; see also CPLR 4518). Plaintiff's contention that one of the affidavits submitted by defendant should not have been considered because it did not comply with CPLR 2309(c) was not raised below and is therefore waived ( see Mani Med., P.C. v. N.Y. Cent. Mut. Ins. Co., 19 Misc.3d 128[A], 2008 N.Y. 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 N.Y. Slip Op 51611 [U] [App Term, 2d & 11th Jud Dists 2007] ).
Accordingly, the judgment is affirmed.