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Cont'l Med., P.C. v. MVAIC

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
Nov 2, 2018
61 Misc. 3d 136 (N.Y. App. Term 2018)

Opinion

2015-2611 Q C

11-02-2018

CONTINENTAL MEDICAL, P.C., as Assignee of Edward Rivera, Respondent, v. MVAIC, Appellant.

Marshall & Marshall, PLLC (Tracy Bader Pollack of counsel), for appellant. Israel, Israel & Purdy, LLP (Jennifer Greenhalgh Howard of counsel), for respondent.


Marshall & Marshall, PLLC (Tracy Bader Pollack of counsel), for appellant.

Israel, Israel & Purdy, LLP (Jennifer Greenhalgh Howard of counsel), for respondent.

PRESENT: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

After a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the Civil Court awarded judgment to plaintiff in the principal sum of $15,646.35.

The evidence adduced at trial was insufficient to establish that plaintiff had exhausted its remedies against the vehicle's owner (see Matter of Acosta-Collado v. Motor Veh. Acc. Indem. Corp., 103 AD3d 714 [2013] ; Hauswirth v. American Home Assur. Co. , 244 AD2d 528 [1997] ). As a result, plaintiff's claim is premature (see Matter of Acosta-Collado , 103 AD3d 714 ; Hauswirth , 244 AD2d 528 ; Dr. Abakin, D.C., P.C. v. MVAIC , 21 Misc 3d 134[A], 2008 NY Slip Op 5218 [U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; see also Matter of Sweet v. Motor Veh. Acc. Indem. Corp. , 287 AD2d 510 [2001] ; Matter of Troches v. Motor Veh. Acc. Indem. Corp. , 171 AD2d 873 [1991] ).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.


Summaries of

Cont'l Med., P.C. v. MVAIC

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
Nov 2, 2018
61 Misc. 3d 136 (N.Y. App. Term 2018)
Case details for

Cont'l Med., P.C. v. MVAIC

Case Details

Full title:Continental Medical, P.C., as Assignee of Edward Rivera, Respondent, v…

Court:SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Date published: Nov 2, 2018

Citations

61 Misc. 3d 136 (N.Y. App. Term 2018)
2018 N.Y. Slip Op. 51549
110 N.Y.S.3d 870