Key Takeaway
Appellate Term Second Department allows unpreserved legal arguments in no-fault insurance appeal, potentially encouraging sloppy Civil Court work and litigation tactics.
This article is part of our ongoing procedural issues coverage, with 186 published articles analyzing procedural issues issues across New York State. Attorney Jason Tenenbaum brings 24+ years of hands-on experience to this analysis, drawing from his work on more than 1,000 appeals, over 100,000 no-fault cases, and recovery of over $100 million for clients throughout Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, and the Bronx. For personalized legal advice about how these principles apply to your specific situation, contact our Long Island office at (516) 750-0595 for a free consultation.
New York’s civil procedure rules include preservation requirements that generally bar appellate courts from considering arguments not raised before the trial court. These preservation rules serve important judicial efficiency goals by ensuring that trial courts have the opportunity to address legal issues before appellate review. They also prevent parties from sandbagging opponents by withholding arguments until appeal, when the opposing party has no opportunity to respond or develop a contrary record.
The Appellate Term’s decision in Ortho Products & Equipment, Inc. v Interboro Insurance Co. addresses what happens when a respondent includes new legal arguments in an appellate brief that were never raised in the trial court. The appellant insurance company moved to strike these unpreserved arguments from the respondent’s brief, setting up a procedural question about the scope of appellate review and whether courts should entertain issues raised for the first time on appeal.
Case Background
Ortho Products & Equipment brought a no-fault action against Interboro Insurance Company seeking reimbursement for medical equipment provided to accident victims. After an adverse order from the Civil Court of Kings County, the appellant filed a notice of appeal. During the appellate briefing process, the respondent included certain legal arguments in paragraphs 8, 9, 12, 13, 14, and 15 of its brief that had apparently not been raised before the trial court.
The appellant moved to strike these paragraphs from the respondent’s brief, arguing that the Appellate Term should not consider matters that were not properly preserved through presentation to the trial court. The respondent did not file opposition papers to the motion to strike, leaving the Appellate Term to decide the preservation issue without briefing from both sides.
Jason Tenenbaum’s Analysis:
Ortho Prods. & Equip., Inc. As Assignee of Daniel Robinson, Nicholas Manickchand & Bradley Forbes v Interboro Ins. Co., 2012 NY Slip Op 61416(U)
Appellate Term of the Supreme Court
of the State of New York for the 2nd, 11th & 13th judicial Districts
MICHELLE WESTON, J.P.
MICHAEL L. PESCE
JAIME A. RIOS, JJ.
DECISION & ORDER ON MOTION
2011-551 K C
| Ortho Products & Equipment, Inc. as Assignee of Daniel Robinson, Nicholas Manickchand and Bradley Forbes, Respondent, v Interboro Ins. Co., Appellant. |
Motion by appellant on an appeal from an order of the Civil Court of the City of New York, Kings County, entered December 16, 2010, to strike paragraphs 8, 9, 12, 13, 14 and 15 from the respondent’s brief.
Upon the papers filed in support of the motion and no papers having been filed in opposition thereto, it is
ORDERED that the motion is denied.
It is noted that this court will not consider any matter that is dehors the record (see Chimarios v Duhl, 152 AD2d 508 ).
I do not know why this Court could not do what the Appellate Division does and refer this motion to the panel of judges hearing the appeal. Orders like this embolden sloppy Civil Court work with the incentive that on appeal the court will allow the Appellant or Respondent to raise unpreserved legal argument in and get away with it.
Unreal.
Legal Significance
The Appellate Term’s denial of the motion to strike has significant implications for preservation doctrine in New York civil litigation. By refusing to strike the unpreserved arguments from the respondent’s brief, the court left open the possibility that it might consider those arguments when deciding the appeal. This creates uncertainty about whether preservation rules will be strictly enforced and whether parties can successfully raise new issues on appeal.
The court did note that it “will not consider any matter that is dehors the record,” citing Chimarios v Duhl, 152 AD2d 508. This reference to matters outside the record provides some limitation on appellate consideration of new issues. However, it does not directly address whether the court will consider legal arguments that were not raised below but that relate to matters in the record. There is a difference between introducing new factual material not in the record and presenting new legal theories based on existing record evidence.
The decision contrasts unfavorably with Appellate Division practice, where motions to strike portions of briefs are typically referred to the panel hearing the appeal for decision. This approach allows the judges who will actually decide the case to evaluate whether specific arguments should be considered. By deciding the motion to strike separately without referencing it to the panel, the Appellate Term created a procedural disconnect that may lead to inconsistent results.
The practical effect of this ruling may be to encourage parties to include unpreserved arguments in appellate briefs, hoping that appellate courts will entertain them despite preservation defects. This undermines the preservation doctrine’s purpose of ensuring orderly trial court proceedings and focused appellate review. It also creates unfair surprise for opposing parties who may not have had the opportunity to develop contrary evidence or argument at the trial level.
Practical Implications for Attorneys and Litigants
For practitioners appearing before the Appellate Term, this decision suggests that preservation requirements may not be strictly enforced. Parties should consider including arguments in appellate briefs even if those arguments were not raised below, as the court may entertain them despite preservation defects. However, this strategy carries risks: if the appellate panel does apply preservation doctrine strictly, unpreserved arguments may be ignored, and including them may distract from preserved issues.
For Civil Court litigants and their counsel, the decision highlights the importance of thorough trial court practice. Rather than relying on preservation doctrine to limit the scope of appeals, parties should assume that any issue remotely related to the record may be raised on appeal. This means developing comprehensive records and addressing potential issues preemptively, even if opposing counsel has not raised them.
The decision also illustrates a procedural problem in Appellate Term practice. Unlike the Appellate Division, which refers motions to strike to the merits panel, the Appellate Term may decide these motions separately. This creates the possibility that the court will deny a motion to strike but then apply preservation doctrine to ignore the challenged arguments anyway. Parties should be aware of this disconnect and perhaps address preservation issues in their substantive briefs rather than relying solely on motions to strike.
Insurance companies and healthcare providers engaged in no-fault litigation should take note that sloppy Civil Court practice may not be punished on appeal through strict application of preservation doctrine. This may encourage more aggressive appellate advocacy, with parties attempting to raise issues that were not fully litigated below. It also means that victories in Civil Court may be less secure than in other forums where preservation doctrine is more rigorously applied.
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Legal Context
Why This Matters for Your Case
New York law is among the most complex and nuanced in the country, with distinct procedural rules, substantive doctrines, and court systems that differ significantly from other jurisdictions. The Civil Practice Law and Rules (CPLR) governs every stage of civil litigation, from service of process through trial and appeal. The Appellate Division, Appellate Term, and Court of Appeals create a rich and ever-evolving body of case law that practitioners must follow.
Attorney Jason Tenenbaum has practiced across these areas for over 24 years, writing more than 1,000 appellate briefs and publishing over 2,353 legal articles that attorneys and clients rely on for guidance. The analysis in this article reflects real courtroom experience — from motion practice in Civil Court and Supreme Court to oral arguments before the Appellate Division — and a deep understanding of how New York courts actually apply the law in practice.
About This Topic
Procedural Issues in New York Litigation
New York civil procedure governs every stage of litigation — from pleading requirements and service of process to motion practice, discovery deadlines, and trial procedures. The CPLR creates strict procedural rules that can make or break a case regardless of the underlying merits. These articles examine the procedural pitfalls, timing requirements, and strategic considerations that practitioners face in New York state courts, with a particular focus on no-fault insurance and personal injury practice.
186 published articles in Procedural Issues
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Mar 24, 2010Common Questions
Frequently Asked Questions
What are common procedural defenses in New York no-fault litigation?
Common procedural defenses include untimely denial of claims (insurers must issue denials within 30 days under 11 NYCRR §65-3.8(c)), failure to properly schedule EUOs or IMEs, defective service of process, and failure to comply with verification request requirements. Procedural compliance is critical because courts strictly enforce these requirements, and a single procedural misstep by the insurer can result in the denial being overturned.
What is the CPLR and how does it affect my case?
The New York Civil Practice Law and Rules (CPLR) is the primary procedural statute governing civil litigation in New York state courts. It covers everything from service of process (CPLR 308) and motion practice (CPLR 2214) to discovery (CPLR 3101-3140), statute of limitations (CPLR 213-214), and judgments. Understanding and complying with CPLR requirements is essential for successful litigation.
What is the 30-day rule for no-fault claim denials?
Under 11 NYCRR §65-3.8(c), an insurer must pay or deny a no-fault claim within 30 calendar days of receiving proof of claim — or within 30 days of receiving requested verification. Failure to issue a timely denial precludes the insurer from asserting most defenses, including lack of medical necessity. This 30-day rule is strictly enforced by New York courts and is a critical defense for providers and claimants.
How does improper service of process affect a no-fault lawsuit?
Improper service under CPLR 308 can result in dismissal of a case for lack of personal jurisdiction. In no-fault collection actions, proper service on insurers typically requires serving the Superintendent of Financial Services under Insurance Law §1212. If service is defective, the defendant can move to dismiss under CPLR 3211(a)(8), and any default judgment obtained on defective service may be vacated.
What is a condition precedent in no-fault insurance?
A condition precedent is a requirement that must be satisfied before a party's obligation arises. In no-fault practice, claimant conditions precedent include timely filing claims, appearing for EUOs and IMEs, and responding to verification requests. Insurer conditions precedent include timely denying claims and properly scheduling examinations. Failure to satisfy a condition precedent can be dispositive — an untimely denial waives the insurer's right to contest the claim.
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About the Author
Jason Tenenbaum, Esq.
Jason Tenenbaum is the founding attorney of the Law Office of Jason Tenenbaum, P.C., headquartered at 326 Walt Whitman Road, Suite C, Huntington Station, New York 11746. With over 24 years of experience since founding the firm in 2002, Jason has written more than 1,000 appeals, handled over 100,000 no-fault insurance cases, and recovered over $100 million for clients across Long Island, Nassau County, Suffolk County, Queens, Brooklyn, Manhattan, the Bronx, and Staten Island. He is one of the few attorneys in the state who both writes his own appellate briefs and tries his own cases.
Jason is admitted to practice in New York, New Jersey, Florida, Texas, Georgia, and Michigan state courts, as well as multiple federal courts. His 2,353+ published legal articles analyzing New York case law, procedural developments, and litigation strategy make him one of the most prolific legal commentators in the state. He earned his Juris Doctor from Syracuse University College of Law.
Disclaimer: This article is published by the Law Office of Jason Tenenbaum, P.C. for informational and educational purposes only. It does not constitute legal advice, and no attorney-client relationship is formed by reading this content. The legal principles discussed may not apply to your specific situation, and the law may have changed since this article was last updated.
New York law varies by jurisdiction — court decisions in one Appellate Division department may not be followed in another, and local court rules in Nassau County Supreme Court differ from those in Suffolk County Supreme Court, Kings County Civil Court, or Queens County Supreme Court. The Appellate Division, Second Department (which covers Long Island, Brooklyn, Queens, and Staten Island) and the Appellate Term (which hears appeals from lower courts) each have distinct procedural requirements and precedents that affect litigation strategy.
If you need legal help with a procedural issues matter, contact our office at (516) 750-0595 for a free consultation. We serve clients throughout Long Island (Huntington, Babylon, Islip, Brookhaven, Smithtown, Riverhead, Southampton, East Hampton), Nassau County (Hempstead, Garden City, Mineola, Great Neck, Manhasset, Freeport, Long Beach, Rockville Centre, Valley Stream, Westbury, Hicksville, Massapequa), Suffolk County (Hauppauge, Deer Park, Bay Shore, Central Islip, Patchogue, Brentwood), Queens, Brooklyn, Manhattan, the Bronx, Staten Island, and Westchester County. Prior results do not guarantee a similar outcome.
