March 11, 2016

Atlantic Radiology Imaging, P.C. v Esurance Ins. Co. (2016 NY Slip Op 50315(U))

Headnote

The provider's challenges to proof of EUO mailing and nonappearance failed because mailing was established and the wrong proof was challenged. The provider appealed summary judgment dismissing its assigned no-fault action based on the assignor's failure to attend duly scheduled EUOs. The insurer's employee affidavit sufficiently established mailing of the scheduling letters. The provider also attacked an affirmation from the managing partner of the law firm retained to conduct the EUOs, but that affirmation was not the proof the insurer submitted to establish nonappearance. Finding no basis to disturb the ruling, the Appellate Term, Second Department, affirmed the order granting the insurer summary judgment dismissing the complaint.

Reported in New York Official Reports at Atlantic Radiology Imaging, P.C. v Esurance Ins. Co. (2016 NY Slip Op 50315(U))

[*1]
Atlantic Radiology Imaging, P.C. v Esurance Ins. Co.
2016 NY Slip Op 50315(U) [50 Misc 3d 147(A)]
Decided on March 11, 2016
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 11, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


PRESENT: : PESCE, P.J., ALIOTTA and ELLIOT, JJ.
2013-1480 K C
Atlantic Radiology Imaging, P.C. as Assignee of Kareem Hoyte, Appellant,

against

Esurance Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered August 1, 2012. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).

Contrary to plaintiff’s argument, the affidavit of defendant’s employee was sufficient to establish the mailing of the EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]).

Plaintiff also argues that the affirmation by the managing partner of defendant’s law firm, which had been retained to conduct the EUOs, did not establish that the assignor had failed to appear for the EUOs. This argument lacks merit, as that affirmation was not the proof submitted by defendant to establish the assignor’s failure to appear.

As plaintiff has failed to demonstrate any basis to disturb the Civil Court’s order, the order is affirmed.

Pesce, P.J., Aliotta and Elliot, JJ., concur.


Decision Date: March 11, 2016

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