Opinion
No. 2010–2131 Q C.
2012-05-14
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. 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] ).
Present: PESCE, P.J., RIOS and ALIOTTA, JJ.
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 ( seeCPLR 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 N.Y. 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 N.Y. 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 A.D.2d 553 [1999];Urban Radiology, P.C. v. Tri–State Consumer Ins. Co., 27 Misc.3d 140[A], 2010 N.Y. 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 N.Y. Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008] ). Plaintiff's remaining contentions also lack merit.
Accordingly, the judgment is affirmed.