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Vista Surgical Supplies, Inc. As Assignee of Malcolm Peters v. Clarendon National Insurance Company

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


June 11, 2012

VISTA SURGICAL SUPPLIES, INC. AS ASSIGNEE OF MALCOLM PETERS,
APPELLANT,
v.
CLARENDON NATIONAL INSURANCE COMPANY,
RESPONDENT.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), dated October 22, 2010.

Vista Surgical Supplies, Inc. v Clarendon Natl. Ins. Co.

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This opinion is uncorrected and will not be published in the printed Official Reports.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 June 11, 2012

PRESENT: RIOS, J.P., PESCE and ALIOTTA, JJ

The judgment, entered upon a decision dated April 10, 2010, made after a non-jury trial, dismissed the complaint.

ORDERED that on the court's own motion, the notice of appeal from the decision is deemed a premature notice of appeal from the judgment (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is affirmed, without costs.

At a non-jury trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff's owner testified that he had mailed the claim form in question by certified mail, return receipt requested. However, the certified mail receipt and domestic return receipt which he offered as proof of mailing lacked certain material information. Significantly, the certified mail receipt did not contain amounts for postage and fees, and did not have a clerk identification and date, and the return receipt was not signed by a recipient and did not indicate a date of delivery. Defendant's witness testified that defendant had not received the claim form in question until after the commencement of the action, some three years after the purported mailing.

In a decision after trial, the Civil Court found that plaintiff had not established a prima facie case as it had not proved a timely mailing of the claim form in question. A judgment dismissing the complaint was subsequently entered. We deem the notice of appeal from the decision to be a premature notice of appeal from the judgment (see CPLR 5520 [c]).

The decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). The determination of a trier of fact as to issues of credibility is given substantial deference, as the trial court's opportunity to observe and evaluate the testimony and demeanor of witnesses affords it a better perspective from which to assess their credibility (see Vizzari v State of New York, 184 AD2d 564 [1992]; Kincade v Kincade, 178 AD2d 510 [1991]).

In the present case, the record supports the determination of the Civil Court, based upon its assessment of the credibility of the witnesses and the proof adduced at trial, that plaintiff failed to satisfy its burden of proving that the claim form in question had been timely and properly mailed to defendant. Accordingly, as we find no basis to disturb the Civil Court's findings, the judgment is affirmed.

Rios, J.P., Pesce and Aliotta, JJ., concur.

Decision Date: June 11, 2012

20120611

© 1992-2012 VersusLaw Inc.



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