Compas Med., P.C. v MVAIC

[*1] Compas Med., P.C. v MVAIC 2014 NY Slip Op 50414(U) Decided on March 11, 2014 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 11, 2014
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ
.

Compas Medical, P.C. as Assignee of NERLANDE PIERRE, Respondent,

against

MVAIC, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered October 17, 2011. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $4,366.80.

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.

In this action by a provider to recover assigned first-party no-fault benefits, the only issues to be decided at the trial were whether plaintiff's assignor was a covered person and whether the assignor is eligible to receive first-party no-fault benefits pursuant to an insurance policy.

At the nonjury trial, the assignor's notice of intention to make claim form was admitted into evidence and the sole witness was an employee of defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC). In the notice of intention to make claim form, the assignor stated that both vehicles involved in the accident were insured by named insurance companies.

Since plaintiff and its assignor were aware of the identity of the owner of the vehicle which plaintiff's assignor was driving 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.
Decision Date: March 11, 2014