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Leica Supply, Inc. As Assignee of Roscoe Biggers v. Encompass Indemnity Company

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


May 14, 2012

LEICA SUPPLY, INC. AS ASSIGNEE OF ROSCOE BIGGERS, APPELLANT,
v.
ENCOMPASS INDEMNITY COMPANY, RESPONDENT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered June 14, 2010.

Leica Supply, Inc. v Encompass Indem. Co.

Decided on May 14, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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: PESCE, P.J., RIOS and ALIOTTA, JJ

The order, insofar as appealed from as limited by the brief, granted defendant's cross motion for summary judgment dismissing the complaint. The appeal is deemed to be from a judgment of the same court entered July 8, 2010, pursuant to the June 14, 2010 order, dismissing the complaint (see CPLR 5501 [c]).

ORDERED that the judgment is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order as granted defendant's cross 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). A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

Contrary to plaintiff's contentions on appeal, the affidavits submitted by defendant established that the EUO scheduling letters and the denial of claim form had been timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and that plaintiff's assignor had failed to appear at either of the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; W & Z Acupuncture, P.C. v Amex Assur. Co., 24 Misc 3d 142[A], 2009 NY Slip Op 51732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Plaintiff's argument that its assignor's failure to appear for the duly scheduled EUOs permitted only the denial of pending claims is without merit (see ARCO Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). Moreover, plaintiff does not claim to have responded to the EUO requests; therefore, plaintiff's objection on appeal regarding those requests will not be heard (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]). Plaintiff's remaining contentions also lack merit.

Accordingly, the judgment is affirmed.

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

Decision Date: May 14, 2012

20120514

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