Ranbow Supply of N.Y., Inc. v MVAIC

[*1] Ranbow Supply of N.Y., Inc. v MVAIC 2013 NY Slip Op 51732(U) Decided on October 8, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 8, 2013
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
2011-2318 K C.

Ranbow Supply of NY, Inc. as Assignee of ANSAH OBENG BOADI, Respondent,

against

MVAIC, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered June 13, 2011. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,467.01.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the complaint.

At a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that plaintiff had timely submitted its claim forms to
defendant Motor Vehicle Accident Indemnification Corp. (sued herein as MVAIC) and that various documents would be admitted into evidence. In its decision after trial, the Civil Court found that the documentation submitted to MVAIC was sufficient to establish that plaintiff's assignor was entitled to no-fault coverage from MVAIC. A judgment was subsequently entered in favor of plaintiff in the principal sum of $1,467.01.

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 (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]; 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]). Here, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle.

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the complaint.

Pesce, P.J., Aliotta and Solomon, JJ., concur. [*2]
Decision Date: October 08, 2013