SUPREME COURT OF THE APPELLATE TERM , FIRST DEPARTMENT
March 24, 2011
OMEGA DIAGNOSTIC IMAGING, P.C., A/A/O DERRICK BROWN,
Omega Diagnostic Imaging, P.C. v MVAIC
Decided on March 24, 2011
Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: Lowe, III, P.J., Shulman, Hunter, Jr., JJ
Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), dated June 4, 2010, which denied its motion for summary judgment dismissing the complaint.
Order (Fernando Tapia, J.), dated June 4, 2010, affirmed, with $10 costs.
In this action by plaintiff-provider to recover assigned first-party no-fault benefits, defendant MVAIC's motion for summary judgment dismissing the claim based on plaintiff's failure to establish that its assignor qualified for MVAIC coverage, was properly denied (see Matter of MVAIC v Interboro Med. Care & Diagnostic, PC, 73 AD3d 667 ; Englington Med., P.C. v Motor Veh. Acc. Indem. Corp. (___AD3d ___, 2011 NY Slip Op 00176 ). Nor has defendant established that plaintiff was required to "exhaust its remedies" prior to commencing this action (see Omega Diagnostic Imaging, P.C. v MVAIC, 29 Misc 3d 129[A], 2010 NY Slip Op 51779[U] ). Defendant's argument, raised for the first time on appeal, that it is entitled to dismissal of the action as premature based on outstanding verification requests is without merit (id.).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur Decision
Date: March 24, 2011
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