Dr. Abakin, D.C., P.C. v MVAIC

[*1] Dr. Abakin, D.C., P.C. v MVAIC 2008 NY Slip Op 52186(U) [21 Misc 3d 134(A)] Decided on November 5, 2008 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 5, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2007-1032 K C.

Dr. Abakin, D.C., P.C. a/a/o LOUIS JONAS, Appellant,

against

MVAIC, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered April 24, 2007. The order granted defendant's motion to dismiss the complaint.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved to dismiss the complaint for failure to state a cause of action (CPLR 3211 [a] [7]), arguing, inter alia, that the action is premature because all possible remedies against the owner and driver of the vehicle in which plaintiff's assignor was a passenger were not exhausted before plaintiff sought relief from MVAIC. The court granted the motion, and this appeal ensued.

The Appellate Division, Second Department, has stated that, in reviewing a motion to dismiss a complaint for failure to state a cause of action, a court must "determine whether the proponent of the pleading has a cause of action, not whether [it] has stated one" (Meyer v Guinta, 262 AD2d 463, 464 [1999]; see also Parsippany Constr. Co., Inc. v Clark Patterson Assoc., P.C., 41 AD3d 805, 806 [2007]). Since plaintiff and its assignor are aware of the identities of the driver and owner of the vehicle in which plaintiff's assignor was a passenger at the time of the accident, plaintiff, as assignee, must first exhaust its remedies against the vehicle's driver and owner before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1977]; Complete Med. Servs. of N.Y., P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip [*2]Op 51541[U] [App Term, 2d & 11th Jud Dists 2008]). Until plaintiff exhausts its remedies, its claim against MVAIC is premature (Hauswirth, 244 AD2d 528). Accordingly, the motion to dismiss was properly granted. We note that if plaintiff exhausts its remedies against those parties, plaintiff may then assert a claim against MVAIC.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: November 05, 2008