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South Nassau Orthopedic Surgery & Sports Medicine, P.C. As Assignee of Estela Maldonado v. Mvaic

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


January 10, 2011

SOUTH NASSAU ORTHOPEDIC SURGERY & SPORTS MEDICINE, P.C. AS ASSIGNEE OF ESTELA MALDONADO,
RESPONDENT,
v.
MVAIC,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered July 15, 2009.

South Nassau Orthopedic Surgery & Sports Medicine, P.C. v MVAIC

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 10, 2011

PRESENT: GOLIA, J.P., PESCE and STEINHARDT, JJ

The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order 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) moved for summary judgment dismissing the complaint on the ground that there was no coverage because plaintiff's assignor had failed to provide proof that, among other things, the vehicle in which she was a passenger was uninsured. The Civil Court denied MVAIC's motion, and this appeal by MVAIC ensued.

Plaintiff, as assignee, is required to exhaust its remedies against the owner of the vehicle in which plaintiff's assignor was riding 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 Dists 2008]; see also Knight v Motor Veh. Acc. Indem. Corp., 62 AD3d 665, 666 [2009]; cf. Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667 [2010]). Until plaintiff exhausts its remedies, its claim against MVAIC is premature (Complete Med. Servs. of NY, P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U]). Accordingly, the order is reversed and MVAIC's motion for summary judgment dismissing the complaint is granted.

Golia, J.P., Pesce and Steinhardt, JJ., concur.

Decision Date: January 10, 2011

20110110

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