AR Med. Rehabilitation, P.C. v MVAIC

[*1] AR Med. Rehabilitation, P.C. v MVAIC 2010 NY Slip Op 51349(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 This opinion is uncorrected and will not be published in the printed Official Reports.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
2009-730 K C.

AR Medical Rehabilitation, P.C. as Assignee of JAMILA BEST, Appellant,

against

MVAIC, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), dated February 5, 2009. The order granted defendant's motion for summary judgment dismissing the complaint.

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)
moved for summary judgment on the ground that there was no coverage because no proof had been provided establishing that all insurance remedies against the owner of the vehicle which allegedly caused plaintiff's injuries had been exhausted. Plaintiff opposed the motion. The Civil Court granted MVAIC's motion for summary judgment, and this appeal by plaintiff ensued.

Since plaintiff and its assignor were aware of the identity of the owner of the vehicle that 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 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]). As no proof was provided to establish that plaintiff had done so, defendant's motion for summary judgment was properly granted.

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