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Five Boro Psychological Services, P.C. As Assignee of Karen Echevaria v. Mvaic

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


April 11, 2011

FIVE BORO PSYCHOLOGICAL SERVICES, P.C. AS ASSIGNEE OF KAREN ECHEVARIA,
RESPONDENT,
v.
MVAIC,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered April 27, 2009.

Five Boro Psychological Servs., 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 11, 2011

PRESENT: WESTON, J.P., GOLIA and RIOS, JJ

The order granted plaintiff's motion for summary judgment.

ORDERED that the order is reversed, without costs, and plaintiff's motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) opposed the motion, arguing that plaintiff was not entitled to summary judgment because, among other things, plaintiff did not establish that it had exhausted its remedies against the owner of the vehicle in which plaintiff's assignor was a passenger when the accident occurred. The Civil Court granted plaintiff's motion, and this appeal by MVAIC ensued.

Contrary to plaintiff's contention, defendant's submission of, among other things, the police report, which identified the insurer of the vehicle in which plaintiff's assignor was a passenger at the time of the accident, was sufficient to raise a triable issue as to whether plaintiff had exhausted its remedies against the vehicle's owner before seeking relief from MVAIC (see Matter of Eagle Ins. Co. v Rodriguez, 15 AD3d 399 [2005]; Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Matter of Eagle Ins. Co. v Olephant, 81 AD2d 886 [1981]). Accordingly, plaintiff's motion for summary judgment is denied.

Weston, J.P., Golia and Rios, JJ., concur.

Decision Date: April 11, 2011

20110411

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