Promed Durable Equip., Inc. v. MVAIC

Opinion

Promed Durable Equipment, Inc., as Assignee of Shaerah Harkless, Respondent,

against

MVAIC, Appellant.

Marshall & Marshall, PLLC (Barbara Carabell of counsel), for appellant. Law Office of Emilia I. Rutigliano, P.C., for respondent (no brief filed).

Appeal from a decision of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), dated May 14, 2015, and from a judgment of that court entered September 30, 2015. The judgment, entered pursuant to the decision, after a nonjury trial, awarded plaintiff the principal sum of $2,655.

ORDERED that so much of the appeal as is from the decision is dismissed, as no appeal lies therefrom (see CCA 1702); 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, the Civil Court awarded judgment to plaintiff in the principal sum of $2,655.

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 52186[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., WESTON and ALIOTTA, JJ., concur.

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