September 15, 2017

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

Headnote

The court considered the denial of plaintiff's motion for summary judgment and the granting of defendant's cross motion for summary judgment dismissing the complaint in an action to recover assigned first-party no-fault benefits. The main issue decided was whether the denial of plaintiff's motion for summary judgment and the granting of defendant's cross motion for summary judgment dismissing the complaint was proper. The holding of the court was that the denial and granting of the motions were affirmed, with $25 costs. The court found that plaintiff's arguments as to defendant's cross motion either lacked merit or were not properly before the court, as they were being raised for the first time on appeal. Therefore, the order was affirmed.

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

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This opinion is uncorrected and will not be published in the printed Official Reports.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