Atlantic Radiology Imaging, P.C. v. Esurance Ins. Co.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 11, 2016
• Docket: 2016 NYSlipOp 50315(U)
• Status: Published

Opinion

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