Opinion
No. 2011–22 K C.
2012-08-31
3 STAR ACUPUNCTURE, P.C. as Assignee of John Galarza, Respondent, v. MVAIC, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Johnny Lee Baynes, J.), entered July 29, 2010, deemed from a judgment of the same court entered September 3, 2010 (see CPLR 5501[c] ). The judgment, entered pursuant to the July 29, 2010 order granting plaintiff's motion for summary judgment and denying defendant's cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $4,280.
Present: PESCE, P.J., RIOS and ALIOTTA, JJ.
ORDERED that the judgment is reversed, with $30 costs, the order entered July 29, 2010 is vacated, plaintiff's motion for summary judgment is denied and defendant's cross 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 an order of the Civil Court entered July 29, 2010 which granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken ( seeCPLR 5501[c] ).
Since plaintiff and its assignor were aware of the identity of the owner of the vehicle in which the assignor had been a passenger 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 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]; see also BLR Chiropractic, P .C. v. MVAIC, 33 Misc.3d 131[A], 2011 N.Y. Slip Op 51878[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; BLR Chiropractic, P.C. v. MVAIC, Misc.3d, 2011 N.Y. Slip Op 52517[U] [App Term, 2d, 11th & 13th Jud Dists 2011] ). As plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle, the judgment is reversed, the order entered July 29, 2010 is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.