Tyler v. Motor Vehicle Accident Indemnification Corp. , 146 A.D.3d 712 ( 2017 )

Matter of Tyler v Motor Veh. Acc. Indem. Corp. (2017 NY Slip Op 00588)

Matter of Tyler v Motor Veh. Acc. Indem. Corp.

2017 NY Slip Op 00588

Decided on January 31, 2017

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on January 31, 2017
Mazzarelli, J.P., Manzanet-Daniels, Feinman, Webber, Gesmer, JJ.

653591/14 2918 2917

[*1]In re Tracy Tyler, Petitioner-Respondent,

v

The Motor Vehicle Accident Indemnification Corporation, Respondent-Appellant.

Kornfeld, Rew, Newman & Simeone, Suffern (William S. Badura of counsel), for appellant.

Law Offices of Brian J. Elbaum, New York (Brian J. Elbaum of counsel), for respondent.

Order, Supreme Court, New York County (Debra A. James, J.), entered November 16, 2015, which confirmed the report of the special referee and granted the petition for leave to commence an action against respondent (MVAIC) pursuant to Insurance Law § 5218, unanimously affirmed, without costs. Order, same court and Justice, entered February 22, 2016, which denied MVAIC's motion to reject the report of the special referee, unanimously affirmed, without costs.

By failing to object to the scope of the reference ordered by the motion court or at the hearing, MVAIC waived its claim that the issue before the special referee was incorrectly limited and that the motion court should have broadened the issue (see Adelaide Prods., Inc. v BKN Intl. AG, 51 AD3d 598 [1st Dept 2008]; Hexcel Corp. v Hercules Inc., 291 AD2d 222, 223 [1st Dept 2002], lv denied 98 NY2d 607 [2002]). The motion court providently exercised its discretion in denying MVAIC's motion to reject the referee's report on the ground of newly discovered evidence.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JANUARY 31, 2017

CLERK