Nature Acupuncture, P.C. v MVAIC

[*1] Nature Acupuncture, P.C. v MVAIC 2011 NY Slip Op 50633(U) Decided on April 11, 2011 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 11, 2011
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., PESCE and RIOS, JJ
2009-2311 K C.

NATURE ACUPUNCTURE, P.C. and CITY CHIROPRACTIC, P.C. as Assignees of ANDRE WETNER, Respondents,

against

MVAIC, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Marie Jimenez, J.), entered September 8, 2009. The order denied defendant's motion for summary judgment dismissing the complaint and granted plaintiffs' cross motion for summary judgment.

 

ORDERED that the order is reversed, without costs, defendant's motion for summary judgment dismissing the complaint is granted and plaintiffs' cross motion for summary judgment is denied.

In this action by providers to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the complaint on the ground, among others, that there was no coverage because no proof had been provided establishing that all insurance remedies had been exhausted against the owner of the vehicle in which plaintiffs' assignor had been a passenger. Plaintiffs cross-moved for summary judgment. The Civil Court denied MVAIC's motion and granted plaintiffs' cross motion. Since plaintiffs and their 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, plaintiffs, as assignees, were required to exhaust their remedies against the vehicle's owner before seeking relief from MVAIC (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 & 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 & 11th Jud Dists 2008]; Dr. Abakin, D.C., P.C. v MVAIC, 21 Misc 3d 134[A], 2008 NY Slip Op 52186[U] [App Term, 2d & 11th Jud Dists 2008]; [*2]Complete Med. Servs. of NY, P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U] [App Term, 2d & 11th Jud Dists 2008]). As plaintiffs did not demonstrate that they had exhausted their remedies against the owner of the vehicle, the order is reversed, MVAIC's motion for summary judgment dismissing the complaint is granted and plaintiffs' cross motion for summary judgment is denied.

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: April 11, 2011