Right Aid Diagnostic Medicine, P.C. v MVAIC

[*1] Right Aid Diagnostic Medicine, P.C. v MVAIC 2016 NY Slip Op 51438(U) Decided on October 5, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 5, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2748 K C

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