December 8, 2017

Ultimate Care Chiropractic, P.C. v Merchants Mut. Ins. Co. (2017 NY Slip Op 51717(U))

https://www.beynensonlaw.com/case-law/ultimate-care-chiropractic-p-c-v-merchants-mut-ins-co-2017-ny-slip-op51717u/

Court: Appellate Term, Second Department
Decided: December 8, 2017
Citation: 2017 NY Slip Op 51717(U) · 58 Misc 3d 127(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Other

Cite as

Ultimate Care Chiropractic, P.C. v Merchants Mut. Ins. Co., 58 Misc 3d 127(A), 2017 NY Slip Op 51717(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider's challenges to the insurer's summary judgment cross motion were unpreserved because they were first raised on appeal. In this action to recover assigned first-party no-fault benefits, the Civil Court denied the provider's motion for summary judgment and granted the insurer's cross motion dismissing the complaint. All arguments advanced by the provider against the cross motion were raised for the first time on appeal. The Appellate Term, Second Department, declined to consider them under Joe v Upper Room Ministries, Inc. and Gulf Ins. Co. v Kanen and affirmed the order in favor of the insurer.

Reported in New York Official Reports at Ultimate Care Chiropractic, P.C. v Merchants Mut. Ins. Co. (2017 NY Slip Op 51717(U))

[*1]

Ultimate Care Chiropractic, P.C. v Merchants Mut. Ins. Co.

2017 NY Slip Op 51717(U) [58 Misc 3d 127(A)]

Decided on December 8, 2017

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This opinion is uncorrected and will not be published in the printed Official Reports.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 December 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2109 Q C

Ultimate Care Chiropractic, P.C., as Assignee of Pete, Rodney, Appellant,
against
Merchants Mutual Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Lawrence N. Rogak, LLC (Lawrence N. Rogak, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Ulysses Bernard Leverett, J.), entered July 25, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

All of plaintiff’s arguments as to why defendant’s cross motion for summary judgment should have been denied are not properly before this court, since they are being raised for the first time on appeal, and we decline to consider them (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]). Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: December 08, 2017

Similar decisions

Ultimate Health Prods., Inc. v Allstate Ins. Co. (2016 NY Slip Op 50921(U))The insurer's summary judgment cross motion asserting outstanding verification was denied on appeal; the provider's motion remained denied.
Restoration Chiropractic, P.C. v 21st Century Ins. Co. (2018 NY Slip Op 51656(U))The insurer's proof established proper mailing of EUO scheduling letters supporting its defense of the assignor's nonappearance.
Comprehensive Care Physical Therapy, P.C. v State-Wide Ins. Co. (2017 NY Slip Op 51448(U))The insurer's affirmation established the provider's failure to appear for EUOs on the five claims at issue on appeal.
Great Health Care Chiropractic, P.C. v Unitrin Direct Ins. Co. (2016 NY Slip Op 50373(U))The insurer failed to prove a timely denial, and the provider failed to establish its prima facie entitlement to summary judgment.
Longevity Med. Supply, Inc. v Farmington Cas. Co. (2019 NY Slip Op 51626(U))The provider's sole challenge to the insurer's summary judgment motion was unpreserved because it was raised for the first time on appeal.