Opinion
2012-04-3
Ramon LIRIANO, respondent, v. EVEREADY INSURANCE COMPANY, appellant.
Sweetbaum & Sweetbaum, Lake Success, N.Y. (Marshall D. Sweetbaum of counsel), for appellant. Linda T. Ziatz, P.C., Forest Hills, N.Y., for respondent.
Sweetbaum & Sweetbaum, Lake Success, N.Y. (Marshall D. Sweetbaum of counsel), for appellant. Linda T. Ziatz, P.C., Forest Hills, N.Y., for respondent.
In an action pursuant to Insurance Law § 3420(a)(2) to recover the amount of an unsatisfied judgment against the defendant's insured, the defendant appeals from an order of the Supreme Court, Queens County (Lane, J.), dated November 4, 2011, which denied its motion for summary judgment dismissing the complaint on the ground that the plaintiff would be unable to prove at trial that service of the judgment was made upon the defendant.
ORDERED that the order is affirmed, with costs.
Contrary to the defendant's contention, the Supreme Court properly determined that summary judgment should be denied because the affidavit of service prepared by the plaintiff's now-deceased process server may be admitted as prima facie evidence of service in proceedings before that court ( see CPLR 4531; Koyenov v. Twin–D Transp., Inc., 33 A.D.3d 967, 969, 824 N.Y.S.2d 338). The defendant may then present testimony in rebuttal, with issues of credibility to be determined by the Supreme Court ( see e.g. Capital Resources Corp. v. Auguste, 266 A.D.2d 330, 698 N.Y.S.2d 303; Deitsch v. Fischer, 246 A.D.2d 623, 667 N.Y.S.2d 314; Gordon v. Nemeroff Realty Corp., 139 A.D.2d 492, 492–493, 526 N.Y.S.2d 595). The decision and order of this Court in a prior appeal in this case does not support a contrary conclusion ( see Liriano v. Eveready Ins. Co., 65 A.D.3d 524, 884 N.Y.S.2d 248).
The defendant's remaining contention was improperly advanced for the first time in its reply papers before the Supreme Court, and therefore we do not consider it ( see Goldman v. A & E Club Props., LLC, 89 A.D.3d 681, 683, 932 N.Y.S.2d 136; Djoganopoulos v. Polkes, 67 A.D.3d 726, 727, 889 N.Y.S.2d 213).