Opinion
No. 08-2972-cv.
June 16, 2009.
Appeal from the United States District Court for the Southern District of New York (McMahon, J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of said district court be and it hereby is AFFIRMED.
Robert J. Bach, New York, NY, for Appellant.
Patrick W. Begos, (Christopher G. Brown, on the brief), Begos Horgan Brown, Westport, CT, for Appellee.
PRESENT: PIERRE N. LEVAL, ROSEMARY S. POOLER and B.D. PARKER, Circuit Judges.
SUMMARY ORDER
Plaintiff-appellant Michael Derin appeals from a judgment of the United States District Court for the Southern District of New York (McMahon, J.), granting summary judgment to defendantappellee First UNUM Life Insurance Company ("UNUM") on his claims under the Employee Retirement Income Security Act ("ERISA"). We assume the parties' familiarity with the facts, procedural background, and specification of issues on appeal.
For substantially the reasons offered by the district court, we find that UNUM's denial of plaintiffs claim was appropriate. Plaintiff is a participant in a long-term disability benefit plan administered by UNUM. Plaintiff was totally disabled for a period from 1990 to 1991, partially disabled from 1991 to 2004, and totally disabled again in 2004. Plaintiff contends that UNUM miscalculated his disability benefits in 2004. It is undisputed that the policy provided that the gross monthly benefit amount would be offset by "[o]ther income benefits" including Social Security Disability (SSDI) benefits. Plaintiff was awarded $1,025 in SSDI benefits in 1990, and after that award expired in 1995, was awarded $1,733 in SSDI benefits in 2004. The 2004 SSDI award was independent of the Social Security Administration's 1990 award. Accordingly, UNUM properly determined that the 2004 SSDI award of $1,733 should be deducted from plaintiffs gross monthly benefit of $4,020 as "[o]ther income benefits."
Plaintiffs arguments on appeal either were not raised below or are without merit. Plaintiff did not argue before the district court that the calculation of benefits was erroneous based upon the "same disability" provision, and that argument is therefore waived. Baker v. Dorfman, 239 F.3d 415, 423 (2d Cir. 2000) (holding that an argument raised for the first time on appeal is ordinarily waived). Plaintiffs other arguments are without merit.
For the foregoing reasons, we AFFIRM the judgment of the district court.