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Crescent Radiology, Pllc As Assignee of Spiros Arbiros v. American Transit Insurance Company

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS


April 6, 2011

CRESCENT RADIOLOGY, PLLC AS ASSIGNEE OF SPIROS ARBIROS,
RESPONDENT,
v.
AMERICAN TRANSIT INSURANCE COMPANY,
APPELLANT.

Appeal from an order of the District Court of Nassau County, Third District (Fred J. Hirsh, J.), dated November 18, 2009.

Crescent Radiology, PLLC v American Tr. Ins. Co.

Decided on April 6, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

PRESENT:TANENBAUM, J.P., MOLIA and LaCAVA, JJ .

The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, without costs, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely denied plaintiff's claims based on the assignor's failure to appear at two scheduled examinations under oath (EUOs). The District Court granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment, holding that although defendant had established the timely mailing of the EUO scheduling letters and the nonappearance of the assignor at the EUOs, defendant had failed to show that the EUO was "based upon the application of objective standards so that there is a specific objective justification supporting the use of such examination." This appeal by defendant ensued.

In support of its cross motion for summary judgment dismissing the complaint, defendant submitted affidavits of its no-fault examiner and its mailroom supervisor. The affidavits sufficiently established that the EUO notices had been sent to plaintiff's assignor in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]; Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]; Chi Acupuncture, P.C. v Kemper Auto & Home Ins. Co., 14 Misc 3d 141[A], 2007 NY Slip Op 50352[U] [App Term, 9th & 10th Jud Dists 2007]). Defendant also submitted an affidavit of the investigator who was to perform the EUOs, which established that the assignor had failed to appear therefor (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, defendant sufficiently established that the denial of claim forms had been timely mailed in accordance with defendant's standard office practices and procedures (see St. Vincent's Hosp. of Richmond, 50 AD3d at 1124).

The papers substantiate the basis for the EUO request. Moreover, plaintiff does not claim to have responded in any way to defendant's request for an EUO. Therefore, plaintiff will not be heard to complain that there was no reasonable basis for the EUO request (cf. Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]).

In light of the foregoing, the order is reversed, defendant's cross motion for summary judgment dismissing the complaint is granted and plaintiff's motion for summary judgment is denied.

Tanenbaum, J.P., Molia and LaCava, JJ., concur.

Decision Date: April 06, 2011

20110406

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