Unpreserved argument

When Strong Arguments Fall Through the Cracks: The Importance of Preservation in No-Fault Appeals

In no-fault insurance litigation, attorneys often rely on standard arguments and boilerplate language when challenging denial of claims. However, this case serves as a stark reminder that even meritorious arguments can be lost forever if not properly preserved at the trial court level. The Appellate Term’s decision in Natural Therapy Acupuncture demonstrates how procedural missteps can doom otherwise winning legal positions.

The case involves a common scenario in no-fault practice: a healthcare provider challenging an insurance company’s denial through a declaratory judgment action. While the provider’s appellate counsel attempted to raise what appears to be a strong argument about privity, the court’s response was swift and unforgiving — the argument was waived due to failure to raise it below.

This situation reflects a broader pattern in no-fault litigation where attorneys sometimes become too comfortable with standard approaches and copy-paste strategies, potentially overlooking case-specific arguments that could make the difference between victory and defeat.

Jason Tenenbaum’s Analysis:

Natural Therapy Acupuncture, P.C. v Unitrin Auto & Home Ins. Co., 2016 NY Slip Op 50133(U)(App. Term 2d Dept. 2016)

This is really a good argument. But, it fell outside the Rybak boilerplate as to why a declaratory judgment order is not preclusive as to his client. On appeal, unnamed appellate counsel tried to resuscitate an omitted meritorious argument. Court said this:

“Plaintiff’s contention on appeal, in essence, that defendant was not in privity with Kemper, is unpreserved for appellate review, because plaintiff failed to raise the issue in the Civil Court (see Volunteer Fire Assn. of Tappan, Inc. v County of Rockland, 114 AD3d 935 ; Peerless Ins. Co. v Casey, 194 AD2d 411 ; Martin v Triborough Bridge & Tunnel Auth., 180 AD2d 596 ).”

Irony here. I have an appeal where a meritorious argument was omitted from Rybak’s boilerplate and unnamed appellate counsel is not raising it on appeal. I think we know the answer.

Key Takeaway

The preservation doctrine in New York courts is unforgiving — even strong legal arguments will be rejected on appeal if not raised at the trial level. No-fault practitioners must carefully review each case for unique circumstances that may require arguments beyond standard declaratory judgment approaches, ensuring all meritorious positions are properly preserved for appellate review.