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Milman v. Allstate Insurance Co.

Supreme Court of New York, Appellate Division, First Department

December 30, 2010

Eduard Milman, M.D.NY County Clerk's No. a/a/o Candace Marrast, 570089/10, Plaintiff-Respondent,
v.
Allstate Insurance Company, Calendar No. 10-101, Defendant-Appellant.

Unpublished Opinion

PRESENT: SCHOENFELD, J.P., HUNTER, J.

PER CURIAM

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.

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 A.D.3d 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 A.D.3d 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 A.D.3d 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 A.D.3d 352 [2009]; Briggs v 2244 Morris, L.P., 30 A.D.3d 216 [2006]).


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