Milman v Allstate Ins. Co.

[*1] Milman v Allstate Ins. Co. 2010 NY Slip Op 52277(U) [30 Misc 3d 128(A)] Decided on December 30, 2010 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 30, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: Schoenfeld, J.P., Hunter, J.

Eduard Milman, M.D. a/a/o Candace Marrast, Plaintiff-Respondent, - DECEMBER 30, 2010 SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT April 2010 Term Schoenfeld, J.P., Hunter, J.Eduard Milman, M.D.NY County Clerk's No. a/a/o Candace Marrast,570089/10 Plaintiff-Respondent, -against- Allstate Insurance Company,Calendar No. 10-101 Defendant-Appellant. Defendant, as limited by its briefs, appeals from that portion of an amended order of the Civil Court of the City of New York, New York County (Manuel J. Mendez, J.), dated March 26, 2009, which granted plaintiff's motion for summary judgment. Per Curiam. Order (Manuel J. Mendez, J.), dated March 26, 2009, insofar as appealed from, affirmed, without costs. In opposition to plaintiff's prima facie showing of entitlement to summary judgment (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]), defendant failed to raise a triable issue. Civil Court properly determined that the report submitted by defendant's peer review doctor in support of the defense of lack of medical necessity failed to comply with CPLR 2106 since it was not affirmed (see Offman v Singh, 27 AD3d 284 [2006]). Therefore, the report did not constitute competent evidence sufficient to defeat plaintiff's motion (see Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]; Bronx Multi Med. Care, P.C. v Kemper Cas. Ins. Co., 21 Misc 3d 127[A], 2008 NY Slip Op 51928[U]). Defendant's contentions raised for the first time on appeal are unpreserved, and are, in any event, unavailing (see e.g. Dembele v Cambisaca, 59 AD3d 352 [2009]; Briggs v 2244 Morris, L.P., 30 AD3d 216 [2006]). THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Decision Date: December 30, 2010 against-

against

Allstate Insurance Company, Defendant-Appellant.

Defendant, as limited by its briefs, appeals from that portion of an amended order of the Civil Court of the City of New York, New York County (Manuel J. Mendez, J.), dated March 26, 2009, which granted plaintiff's motion for summary judgment.

Per Curiam.

Order (Manuel J. Mendez, J.), dated March 26, 2009, insofar as appealed from, affirmed, without costs.

In opposition to plaintiff's prima facie showing of entitlement to summary judgment (see Insurance Law § 5106[a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]), defendant failed to raise a triable issue. Civil Court properly determined that the report submitted by defendant's peer review doctor in support of the defense of lack of medical necessity failed to comply with CPLR 2106 since it was not affirmed (see Offman v Singh, 27 AD3d 284 [2006]). Therefore, the report did not constitute competent evidence sufficient to defeat plaintiff's motion (see Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778 [2008]; Bronx Multi Med. Care, P.C. v Kemper Cas. Ins. Co., 21 Misc 3d 127[A], 2008 NY Slip Op 51928[U]).

Defendant's contentions raised for the first time on appeal are unpreserved, and are, in any event, unavailing (see e.g. Dembele v Cambisaca, 59 AD3d 352 [2009]; Briggs v 2244 Morris, L.P., 30 AD3d 216 [2006]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.


570089/10
Decision Date: December 30, 2010