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Advanced Chiropractic of N.Y., P.C. v. Mvaic

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
Mar 12, 2015
2015 N.Y. Slip Op. 50386 (N.Y. App. Term 2015)

Opinion

2013-400 K C

03-12-2015

Advanced Chiropractic of New York, P.C. as Assignee of JUDY BONAS, Respondent, v. MVAIC, Appellant.


PRESENT: : , ALIOTTA and SOLOMON, JJ.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered July 9, 2012, deemed from a judgment of the same court entered August 7, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 9, 2012 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 $1,019.62.

ORDERED that the judgment is reversed, with $30 costs, the order entered July 9, 2012 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 9, 2012, 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 (see CPLR 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 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, the order entered July 9, 2012 is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: March 12, 2015


Summaries of

Advanced Chiropractic of N.Y., P.C. v. Mvaic

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
Mar 12, 2015
2015 N.Y. Slip Op. 50386 (N.Y. App. Term 2015)
Case details for

Advanced Chiropractic of N.Y., P.C. v. Mvaic

Case Details

Full title:Advanced Chiropractic of New York, P.C. as Assignee of JUDY BONAS…

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

Date published: Mar 12, 2015

Citations

2015 N.Y. Slip Op. 50386 (N.Y. App. Term 2015)