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 [2014]; Peerless Ins. Co. v Casey, 194 AD2d 411 [1993]; Martin v Triborough Bridge & Tunnel Auth., 180 AD2d 596 [1992]).”
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.
