Right Aid Diagnostic Medicine, P.C. v. MVAIC

Appellate Terms of the Supreme Court of New York

Right Aid Diagnostic Medicine, P.C. v. MVAIC

Appellate Terms of the Supreme Court of New York·Decided October 5, 2016·No. 2016 NYSlipOp 51438(U)·Published

Opinion

Right Aid Diagnostic Medicine, P.C., as Assignee of LUIS PONCE, Respondent,

against

MVAIC, Appellant.

Appeal from a resettled order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered January 5, 2012. The resettled order, insofar as appealed from, granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the resettled order, insofar as appealed from, is reversed, with $30 costs, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) cross-moved for summary judgment dismissing the complaint. MVAIC appeals from so much of a resettled order of the Civil Court entered January 5, 2012 as granted plaintiff's motion and denied defendant's cross motion.

Since plaintiff and its assignor were aware of the identity of the owner of the vehicle in which the assignor had been 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]; Modern Art Med., P.C. v MVAIC, 22 Misc 3d 126[A], 2008 NY Slip Op 52586[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Doctor Liliya Med., P.C. v MVAIC, 21 Misc 3d 143[A], 2008 NY Slip Op 52453[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Here, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle (see Right Aid Diagnostic Medicine, P.C. v MVAIC, 41 Misc 3d 126[A], 2013 NY Slip Op 51582 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the resettled order, insofar as appealed from, is reversed, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: October 05, 2016

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Right Aid Diagnostic Medicine, P.C., as Assignee of LUIS PONCE, Respondent,

against

MVAIC, Appellant.

Appeal from a resettled order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered January 5, 2012. The resettled order, insofar as appealed from, granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the resettled order, insofar as appealed from, is reversed, with $30 costs, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) cross-moved for summary judgment dismissing the complaint. MVAIC appeals from so much of a resettled order of the Civil Court entered January 5, 2012 as granted plaintiff's motion and denied defendant's cross motion.

Since plaintiff and its assignor were aware of the identity of the owner of the vehicle in which the assignor had been 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]; Modern Art Med., P.C. v MVAIC, 22 Misc 3d 126[A], 2008 NY Slip Op 52586[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Doctor Liliya Med., P.C. v MVAIC, 21 Misc 3d 143[A], 2008 NY Slip Op 52453[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Here, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle (see Right Aid Diagnostic Medicine, P.C. v MVAIC, 41 Misc 3d 126[A], 2013 NY Slip Op 51582 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

Accordingly, the resettled order, insofar as appealed from, is reversed, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: October 05, 2016

Right Aid Diagnostic Medicine, P.C. v. MVAIC, (N.Y. Ct. App. 2016).

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