September 15, 2017

Charles Deng Acupuncture, P.C. v New S. Ins. Co. (2017 NY Slip Op 51189(U))

https://www.beynensonlaw.com/case-law/charles-deng-acupuncture-p-c-v-new-s-ins-co-2017-ny-slip-op51189u/

Court: Appellate Term, Second Department
Decided: September 15, 2017
Citation: 2017 NY Slip Op 51189(U) · 57 Misc 3d 130(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: Discovery and procedure

Cite as

Charles Deng Acupuncture, P.C. v New S. Ins. Co., 57 Misc 3d 130(A), 2017 NY Slip Op 51189(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 insurer's summary judgment dismissal was affirmed because the provider's challenges lacked merit or were first raised on appeal. The Appellate Term, Second Department, also affirmed denial of the provider's summary judgment motion. It cited St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co. in rejecting the merits arguments, without identifying the underlying defense.

Reported in New York Official Reports at Charles Deng Acupuncture, P.C. v New S. Ins. Co. (2017 NY Slip Op 51189(U))

[*1]

Charles Deng Acupuncture, P.C. v New S. Ins. Co.

2017 NY Slip Op 51189(U) [57 Misc 3d 130(A)]

Decided on September 15, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 15, 2017

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN SOLOMON, JJ
2014-1506 Q C

Charles Deng Acupuncture, P.C., as Assignee of Luc Jean Baptiste, Appellant,
against
New South Insurance Company, Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Freiberg, Peck & Kang, LLP (Yilo J. Kang, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered May 29, 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.

Plaintiff’s arguments as to defendant’s cross motion either lack merit (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), or are not properly before this court, as they are being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v Kanen, 13 AD3d 579 [2004]; Mind & Body Acupuncture, P.C. v Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.
ENTER:
Paul Kenny
Chief Clerk
Decision Date: September 15, 2017

Cited in this decision

A label shows how this decision treated the case it cites.

St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co. (2008 NY Slip Op 04072) FollowedThe insurer raised factual issues concerning a proper timely denial and its entitlement to deny the hospital's claim.
Mind & Body Acupuncture, P.C. v Elrac, Inc. (2015 NY Slip Op 51219(U))The insurer established full fee-schedule payment, and the provider's challenge to the IME letters' address was unpreserved.

Similar decisions

Charles Deng Acupuncture, P.C. v Allstate Ins. Co. (2019 NY Slip Op 51693(U))Both summary judgment motions were denied because neither side established the requisite showing concerning the insurer's denials.
Charles Deng Acupuncture, P.C. v 21st Century Ins. Co. (2017 NY Slip Op 51197(U))The provider's summary judgment motion on one claim was denied on appeal because the propriety of the insurer's denial remained disputed.
Charles Deng Acupuncture, P.C. v Country Wide Ins. Co. (2017 NY Slip Op 50864(U))The insurer's cross motion for summary judgment dismissing the provider's assigned no-fault claims was denied on appeal.
Charles Deng Acupuncture, P.C. v Nationwide Ins. (2022 NY Slip Op 50580(U))The provider's arguments against the insurer's summary judgment motion were unpreserved because they were raised for the first time on appeal.
Charles Deng Acupuncture, P.C. v Zurich Am. Ins. Co. (2018 NY Slip Op 51554(U))The insurer's cross motion for summary judgment was upheld because its proof established that it had issued no policy covering the loss.