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Unpreserved and without meritDecember 23, 2014

Boris Kleyman Physician, P.C. v IDS Prop. Cas. Ins. Co., 2014 NY Slip Op 51810(U)(App. Term 2d Dept. 2014)

“Defendant’s contention that plaintiff did not establish that it has standing to receive reimbursement of the first-party no-fault benefits to which its assignor is entitled because plaintiff failed to annex a copy of the assignment of benefits form executed by its assignor is not properly before this court, as this argument is being raised for the first time on appeal (see Joe v Upper Room Ministries, Inc., 88 AD3d 963 [2011]). In any event, since the claim forms received by defendant stated that plaintiff’s assignor had executed an assignment and, as in Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (9 NY3d 312, 319-320 [2007]), defendant was advised that the signature on the assignment was “on file,” defendant’s contention is devoid of merit (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 319-320 [2007]).

Defendant’s remaining argument is likewise not properly before this court, as this argument is also being raised for the first time on appeal (see Joe, 88 AD3d 963) and, in any event, this argument lacks merit (cf. Radiology Today, P.C. v Mercury Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50148[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).”

Putting aside the ridiculousness of this appeal, an interesting question is raised.  Does Plaintiff have to show some indicia of standing in order to prevail on its summary judgment motion?  What happens if there was no “on-file” statement on the claim forms or AOB?  I suspect it would not matter, but this case makes that proposition interesting.

One Response

  1. SunTzu says:

    I feel personally insulted regarding this appeal, dude is dancing on my hard work.

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