Five Boro Psychological Servs., P.C. v MVAIC

[*1] Five Boro Psychological Servs., P.C. v MVAIC 2010 NY Slip Op 51348(U) [28 Misc 3d 134(A)] Decided on July 29, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 29, 2010
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2009-710 K C.

Five Boro Psychological Services, P.C. as assignee of Eric Singleton, Appellant,

against

MVAIC, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin D. Garson, J.), entered February 19, 2009. The order denied 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, plaintiff moved for moved for summary judgment. Defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) opposed plaintiff's motion on the ground that plaintiff had failed to establish that all insurance remedies against the owners of the vehicles which allegedly caused plaintiff's injuries had been exhausted. The Civil Court denied plaintiff's motion for summary judgment, and this appeal by plaintiff ensued.

Since plaintiff and its assignor were aware of the identity of the owners of the vehicles involved in the accident in which plaintiff's assignor was allegedly injured, plaintiff, as assignee, was required to exhaust its remedies against the vehicles' owners 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 Dists 2008]). As the record does not reflect that plaintiff exhausted its remedies against the vehicles' owners, the order denying plaintiff's motion for summary judgment is affirmed.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: July 29, 2010