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E. Gun Hill Med., P.C. v. Mvaic

Supreme Court, Appellate Term, Second Dept., 2, 11 and 13 Judicial Dist.
May 29, 2014
44 Misc. 3d 127 (N.Y. App. Term 2014)

Opinion

No. 2012–2223 Q C.

2014-05-29

EAST GUN HILL MEDICAL, P.C. as Assignee of Christian Gallardo, Respondent, v. MVAIC, Appellant.


Present: PESCE, P.J., ALIOTTA and SOLOMON, JJ.

Appeal from an order of the Civil Court of the City of New York, Queens County (James E. d'Auguste, J.), entered August 6, 2012, deemed from a judgment of the same court entered September 12, 2012 (see CPLR 5501[c] ). The judgment, entered pursuant to the August 6, 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 $662.63.

ORDERED that the judgment is reversed, with $30 costs, the order entered August 6, 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 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 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] ). 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 August 6, 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.


Summaries of

E. Gun Hill Med., P.C. v. Mvaic

Supreme Court, Appellate Term, Second Dept., 2, 11 and 13 Judicial Dist.
May 29, 2014
44 Misc. 3d 127 (N.Y. App. Term 2014)
Case details for

E. Gun Hill Med., P.C. v. Mvaic

Case Details

Full title:EAST GUN HILL MEDICAL, P.C. as Assignee of Christian Gallardo, Respondent…

Court:Supreme Court, Appellate Term, Second Dept., 2, 11 and 13 Judicial Dist.

Date published: May 29, 2014

Citations

44 Misc. 3d 127 (N.Y. App. Term 2014)
2014 N.Y. Slip Op. 50965
993 N.Y.S.2d 644