Rivera v Pioneer Futures, Inc.

Rivera v Pioneer Futures, Inc. 2007 NY Slip Op 05364 [41 AD3d 255] June 19, 2007 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 15, 2007

Dennis P. Rivera, Appellant,
v
Pioneer Futures, Inc., as a Plan Affording Long-Term Disability Benefits, et al., Respondents.

—[*1] McCormick Dunne & Foley, New York (Christopher P. Foley of counsel), for appellant.

Viola, Benedetti & Azzolini, L.L.C., Florham Park, N.J. (Thomas J. Benedetti of counsel), for Pioneer Futures, Inc., respondent.

Begos & Horgan, LLP, Bronxville (Patrick W. Begos of counsel), for First Unum Life Ins. Co., respondent.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered September 7, 2006, which granted defendant First Unum's motion for summary judgment and denied plaintiff's cross motion to dismiss said defendant's affirmative defense, unanimously affirmed, without costs.

Plaintiff, although self-employed, is nonetheless a "person designated . . . by the terms of an employee benefit plan, who is or may become entitled to a benefit thereunder" (29 USC § 1002 [8]; see Raymond B. Yates, M.D., P.C. Profit Sharing Plan v Hendon, 541 US 1 [2004]; Ruttenberg v United States Life Ins. Co. in City of N.Y., 413 F3d 652 [7th Cir 2005]), and thus has standing to sue under the Employee Retirement Income Security Act (see 29 USC § 1132 [a]), preempting all state law claims (29 USC § 1144). Since the decision of the benefits administrator to deny disability benefits, based on the opinions of a neurologist and two neuropsychologists, was not arbitrary and capricious (see Firestone Tire & Rubber Co. v Bruch, 489 US 101, 115 [1989]), summary judgment was properly granted to defendant First Unum.

We have considered plaintiff's remaining arguments and find them without merit. Concur—Friedman, J.P., Nardelli, Buckley, Sweeny and Malone, JJ. [See 13 Misc 3d 1226(A), 2006 NY Slip Op 51995(U).]