Continental Med., P.C. v. MVAIC

Appellate Terms of the Supreme Court of New York

Continental Med., P.C. v. MVAIC

CourtAppellate Terms of the Supreme Court of New York

DecidedNovember 2, 2018

Docket2018 NYSlipOp 51549(U)

StatusPublished

This text of Continental Med., P.C. v. MVAIC (Continental Med., P.C. v. MVAIC) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Continental Med., P.C. v. MVAIC, (N.Y. Ct. App. 2018).

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Opinion

Continental Medical, P.C., as Assignee of Edward Rivera, Respondent,

against

MVAIC, Appellant.

Marshall & Marshall, PLLC (Tracy Bader Pollack of counsel), for appellant. Israel, Israel & Purdy, LLP (Jennifer Greenhalgh Howard of counsel), for respondent.

Appeal from a decision of the Civil Court of the City of New York, Queens County (Larry Love, J.), dated October 29, 2014, deemed from a judgment of that court entered March 13, 2015 (see CPLR 5512 [a]). The judgment, entered pursuant to the decision, after a nonjury trial, awarded plaintiff the principal sum of $15,646.35.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

After a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the Civil Court awarded judgment to plaintiff in the principal sum of $15,646.35.

The evidence adduced at trial was insufficient to establish that plaintiff had exhausted its remedies against the vehicle's owner (see Matter of Acosta-Collado v Motor Veh. Acc. Indem. Corp., 103 AD3d 714 [2013]; Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]). As a result, plaintiff's claim is premature (see Matter of Acosta-Collado, 103 AD3d 714; Hauswirth, 244 AD2d 528; Dr. Abakin, D.C., P.C. v MVAIC, 21 Misc 3d 134[A], 2008 NY Slip Op 5218[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; see also Matter of Sweet v Motor Veh. Acc. Indem. Corp., 287 AD2d 510 [2001]; Matter of Troches v Motor Veh. Acc. Indem. Corp., 171 AD2d 873 [1991]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

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

ENTER:

Paul Kenny

Chief Clerk
Decision Date: November 02, 2018

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Continental Medical, P.C., as Assignee of Edward Rivera, Respondent,

against

MVAIC, Appellant.

Marshall & Marshall, PLLC (Tracy Bader Pollack of counsel), for appellant. Israel, Israel & Purdy, LLP (Jennifer Greenhalgh Howard of counsel), for respondent.

Appeal from a decision of the Civil Court of the City of New York, Queens County (Larry Love, J.), dated October 29, 2014, deemed from a judgment of that court entered March 13, 2015 (see CPLR 5512 [a]). The judgment, entered pursuant to the decision, after a nonjury trial, awarded plaintiff the principal sum of $15,646.35.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

After a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the Civil Court awarded judgment to plaintiff in the principal sum of $15,646.35.

The evidence adduced at trial was insufficient to establish that plaintiff had exhausted its remedies against the vehicle's owner (see Matter of Acosta-Collado v Motor Veh. Acc. Indem. Corp., 103 AD3d 714 [2013]; Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]). As a result, plaintiff's claim is premature (see Matter of Acosta-Collado, 103 AD3d 714; Hauswirth, 244 AD2d 528; Dr. Abakin, D.C., P.C. v MVAIC, 21 Misc 3d 134[A], 2008 NY Slip Op 5218[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; see also Matter of Sweet v Motor Veh. Acc. Indem. Corp., 287 AD2d 510 [2001]; Matter of Troches v Motor Veh. Acc. Indem. Corp., 171 AD2d 873 [1991]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

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

ENTER:

Paul Kenny

Chief Clerk
Decision Date: November 02, 2018

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