David v MVAIC

[*1] David v MVAIC 2012 NY Slip Op 51721(U) Decided on August 31, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 31, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
2011-814 K C.

Dr. Alan S. David as Assignee of JANICE MULLINGS, Respondent,

against

MVAIC, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Noach Dear, J.), entered February 15, 2011. The order granted plaintiff's motion for summary judgment.

ORDERED that the order is 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) appeals from an order of the Civil Court which granted plaintiff's motion for summary judgment.

Inasmuch as defendant raises no issue with respect to plaintiff's prima facie case, we do not pass upon the propriety of the court's determination with respect thereto.

Defendant correctly argues that the Civil Court's prior order in this action, which denied a motion by defendant that sought summary judgment on the ground that plaintiff's assignor was not a qualified person (see Insurance Law § 5202 [b]), did not bar defendant from opposing plaintiff's instant motion for summary judgment on the ground that plaintiff's assignor failed to exhaust her remedies against the identified owner of the vehicle in which the assignor was a passenger at the time of the accident before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Palin Winotaka, L.Ac. v MVAIC, 34 Misc 3d 160[A], 2012 NY Slip Op 50391[U] [App Term, 2d, 11th & 13th Jud Dists 2012]). However, defendant failed to attach to its opposition papers the documentary evidence upon which it purportedly [*2]relied and which it claimed to have annexed to such papers (cf. Palin Winotaka, L.Ac. v MVAIC, 34 Misc 3d 160[A], 2012 NY Slip Op 50391[U] [record on appeal reflects that MVAIC's moving papers contained a copy of the notice of intention to make claim form]). Consequently, defendant failed to demonstrate the existence of a triable issue of fact.

Accordingly, the order is affirmed.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: August 31, 2012