Healthway Med. Care, P.C. v. MVAIC

Appellate Terms of the Supreme Court of New York

Healthway Med. Care, P.C. v. MVAIC

CourtAppellate Terms of the Supreme Court of New York

DecidedMay 3, 2019

Docket2019 NYSlipOp 50692(U)

StatusPublished

This text of Healthway Med. Care, P.C. v. MVAIC (Healthway Med. Care, 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.

Bluebook

Healthway Med. Care, P.C. v. MVAIC, (N.Y. Ct. App. 2019).

Pincite

Opinion

Healthway Medical Care, P.C., as Assignee of Thomas, Heather, Respondent,

against

MVAIC, Appellant.

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

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered July 27, 2016. The judgment, entered pursuant to a decision of that court dated July 12, 2016, after a nonjury trial, awarded plaintiff the principal sum of $2,515.75.

ORDERED that, on the court's own motion, the notice of appeal from the decision dated July 12, 2016 is deemed a premature notice of appeal from the judgment entered July 27, 2016 (see CPLR 5520 [c]); and it is further,

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 from Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC), the Civil Court awarded judgment to plaintiff in the principal sum of $2,515.75.

Plaintiff, as assignee, was required to exhaust its remedies against all potential insurance carriers before seeking relief from defendant (see Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Orlin & Cohen Orthopedic Assoc. v Motor Veh. Acc. Indem. Corp., 58 Misc [*2]3d 132[A], 2017 NY Slip Op 51778[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]). Here, plaintiff did not demonstrate that it had exhausted its remedies. As a result, plaintiff's claim is premature (see Matter of Acosta-Collado v Motor Veh. Acc. Indem. Corp., 103 AD3d 714 [2013]; Hauswirth, 244 AD2d 528).

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: May 03, 2019

Free access — add to your briefcase to read the full text and ask questions with AI