Opinion
2005-1783 K C.
Decided on January 26, 2007.
PRESENT: : PESCE, P.J., RIOS and BELEN, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Kathy J. King, J.), entered October 13, 2005. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment.
Order affirmed without costs.
In this action to recover assigned first-party no-fault benefits, we do not pass on the propriety of the determination of the court below that plaintiff established its prima facie case, as defendant raises no issue with respect thereto.
Defendant failed to establish timely mailing of its denial forms. The affidavit of its claims processor neither alleged a mailing nor "a sufficiently detailed description of defendant's standard office mailing procedure so as to give rise to the presumption of mailing" ( AVA Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 140 [A], 2006 NY Slip Op 52256[U] [App Term, 2d 11th Jud Dists]; see New York Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679; Vista Surgical Supplies, Inc. v Nationwide Mut. Ins. Co., 12 Misc 3d 147 [A], 2006 NY Slip Op 51556[U] [App Term, 2d 11th Jud Dists]). While defendant's additional affidavits, produced for the first time in defendant's papers submitted in reply to plaintiff's opposition to its cross motion, may have established a timely mailing of its denial forms, they were properly disregarded by the court below and may not be considered on appeal ( Rubens v Fund, 23 AD3d 636, 637; Lazar v Nico Indus., 128 AD2d 408, 409-410; Executive MRI Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 140 [A], 2006 NY Slip Op 52250[U] [App Term, 2d 11th Jud Dists]).
Accordingly, defendant was precluded from raising the defense asserted herein ( see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282).
Pesce, P.J., Rios and Belen, JJ., concur.