
    Dennis P. Rivera, Appellant, v Pioneer Futures, Inc., as a Plan Affording Long-Term Disability Benefits, et al., Respondents.
    [838 NYS2d 535]
   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 plaintiffs 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 plaintiffs 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).]  