March 11, 2016

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

Headnote

The court considered the case of Atlantic Radiology Imaging, P.C. as Assignee of Kareem Hoyte v. Esurance Ins. Co. The main issue decided was whether the plaintiff's assignor had failed to appear for duly scheduled examinations under oath (EUOs), and if so, whether the defendant's motion for summary judgment dismissing the complaint should be granted. The court held that the defendant's employee affidavit was sufficient to establish the mailing of the EUO scheduling letters, and that the affirmation by the managing partner of defendant's law firm did not establish that the assignor had failed to appear for the EUOs. Therefore, as the plaintiff failed to demonstrate any basis to disturb the Civil Court's order, the order granting the defendant's motion for summary judgment to dismiss the complaint was affirmed.

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

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This opinion is uncorrected and will not be published in the printed Official Reports.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