Opinion
No. 2010–3346 Q C.
2012-05-11
ORTHO PRO SERVICES, INC. as Assignee of Gabriel Aviles, Respondent,— v. MVAIC, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered November 19, 2010. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint.
Present: PESCE, P.J., RIOS and ALIOTTA, JJ.
ORDERED that the order, insofar as appealed from, is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from so much an order of the Civil Court as denied its motion for summary judgment dismissing the complaint.
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 A.D.2d 528 [1997];Modern Art Med., P.C. v. MVAIC, 22 Misc.3d 126[A], 2008 N.Y. Slip Op 52586[U] [App Term, 2d & 11th Jud Dists 2008]; Doctor Liliya Med., P.C. v. MVAIC, 21 Misc.3d 143[A], 2008 N.Y. 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 N.Y. 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 N.Y. Slip Op 51541[U] [App Term, 2d & 11th Jud Dists 2008] ). As plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle, the order, insofar as appealed from, is reversed and defendant's motion for summary judgment dismissing the complaint is granted.