June 10, 2022

Charles Deng Acupuncture, P.C. v Nationwide Ins. (2022 NY Slip Op 50580(U))

Headnote

The relevant facts of this case involved an action by a provider to recover assigned first-party no-fault benefits. The court considered the defendant's motion for summary judgment dismissing the complaint. The main issue decided was whether the defendant's motion for summary judgment should have been denied, based on the plaintiff's arguments. The court held that the plaintiff's arguments as to why the defendant's motion for summary judgment should have been denied were not properly before the court, as they were being raised for the first time on appeal, and therefore declined to consider them. As a result, the court affirmed the order granting defendant's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Charles Deng Acupuncture, P.C. v Nationwide Ins. (2022 NY Slip Op 50580(U))

Charles Deng Acupuncture, P.C. v Nationwide Ins. (2022 NY Slip Op 50580(U)) [*1]

Charles Deng Acupuncture, P.C. v Nationwide Ins.

2022 NY Slip Op 50580(U) [75 Misc 3d 138(A)]

Decided on June 10, 2022

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This opinion is uncorrected and will not be published in the printed Official Reports.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 10, 2022

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

PRESENT: : THOMAS P. ALIOTTA, P.J., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ
2020-300 K C

Charles Deng Acupuncture, P.C., as Assignee of Smith, Lendell, Appellant,
against
Nationwide Ins., Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Hollander Legal Group, P.C. (Allan S. Hollander of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered August 8, 2019. The order granted defendant’s 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 granted defendant’s motion for summary judgment dismissing the complaint.

Plaintiff’s arguments as to why defendant’s 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.

ALIOTTA, P.J., TOUSSAINT and GOLIA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: June 10, 2022