Vista Surgical Supplies, Inc. v American Tr. Ins. Co.

[*1] Vista Surgical Supplies, Inc. v American Tr. Ins. Co. 2006 NY Slip Op 52470(U) [14 Misc 3d 127(A)] Decided on December 12, 2006 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 12, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and BELEN, JJ
2005-1996 K C.

Vista Surgical Supplies, Inc. A/A/O GEORGINA ACOSTA, Appellant,

against

American Transit Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered November 7, 2005. The order denied plaintiff's motion for summary judgment.

Order affirmed without costs.

"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (see, Zuckerman v City of New York,
49 NY2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers" (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; see also Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In this action to recover assigned, first-party no-fault benefits, plaintiff's moving papers did not establish that plaintiff ever submitted the subject claim form to defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). To the extent plaintiff's counsel submitted a reply affirmation in which counsel attempted to introduce a purported verification request allegedly sent by defendant to plaintiff in an attempt to demonstrate, for the first time, a critical element of plaintiff's prima facie case, such evidence was neither in admissible form nor properly before the court (see Canter v East Nassau Med. Group, 270 AD2d 381 [2000]; Fischer v Edward M. Weiland M.D.,
P.C., 241 AD2d 439 [1997]; Ritt v Lenox Hill Hosp., 182 AD2d 560 [1992]). As a result,plaintiff's motion for summary judgment was properly denied. [*2]

Pesce, P.J., Golia and Belen, JJ., concur.