Staten Is. Chiropractic Assoc., PLLC v MVAIC

[*1] Staten Is. Chiropractic Assoc., PLLC v MVAIC 2010 NY Slip Op 50698(U) [27 Misc 3d 132(A)] Decided on April 13, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : GOLIA, J.P., PESCE and RIOS, JJ
2009-374 Q C.

Staten Island Chiropractic Associates, PLLC as assignee of LEON HILL, Appellant,

against

MVAIC, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered February 5, 2009, deemed from a judgment of the same court entered February 18, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the February 5, 2009 order granting defendant's motion for summary judgment and denying plaintiff's cross motion for summary judgment, dismissed the complaint.

ORDERED that the judgment 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) moved for summary judgment on the ground that there was no coverage because plaintiff's assignor had failed to provide proof that he had exhausted all insurance remedies against the owner of the vehicle that struck him. Plaintiff opposed the motion and cross-moved for summary judgment. The Civil Court granted MVAIC's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment. This appeal by plaintiff ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

Since plaintiff and its assignor were aware of the identity of the owner of the vehicle which struck plaintiff's assignor, 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 [*2]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 Dists 2008]). Until plaintiff exhausts its remedies, its claim against MVAIC is premature (Complete Med. Servs. of NY, P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U]). Accordingly, the judgment is affirmed.

Golia, J.P., Pesce and Rios, JJ., concur.
Decision Date: April 13, 2010