Arguelles, M.D., P.C. v. Motor Veh. Acc. Indem. Corp.

• Court: Appellate Terms of the Supreme Court of New York
• Decided: July 12, 2019
• Docket: 2019 NYSlipOp 51156(U)
• Status: Published

Opinion

Arguelles, M.D., P.C., as Assignee of Marie Carmel Pierre, Appellant,

against

Motor Vehicle Accident Indemnification Corporation, Respondent.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Marshall & Marshall, PLLC (Jeffrey Kadushin of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered February 10, 2016. The judgment, upon a decision of that court dated September 4, 2014, after a nonjury trial, dismissed the complaint.

ORDERED that, on the court's own motion, the notice of appeal from the decision dated September 4, 2014 is deemed a premature notice of appeal from the judgment entered February 10, 2016 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from a judgment of the Civil Court, after a nonjury trial, which dismissed the complaint.

The only witness at trial was an employee of defendant Motor Vehicle Accident Indemnification Corporation (MVAIC), who testified that plaintiff's assignor was not a covered person because plaintiff had not established that plaintiff's remedies against the owner of the vehicle had been exhausted. Specifically, plaintiff failed to establish lack of coverage of the vehicle in which plaintiff's assignor was a passenger at the time of the accident.

Plaintiff, as assignee, was required to exhaust its remedies against the vehicle's owner before seeking relief from MVAIC (see Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Compas Med., P.C. v MVAIC, 42 Misc 3d 150[A], 2014 NY Slip Op 50414[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Here, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle (see BLR Chiropractic, P.C. v MVAIC, 33 Misc 3d 131[A], 2011 NY Slip Op 51878[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see also BLR Chiropractic, P.C. v MVAIC, 36 Misc 3d 129[A], 2011 NY Slip Op [*2]52517[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the judgment is affirmed.

PESCE, P.J., WESTON and ALIOTTA, JJ., concur.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: July 12, 2019