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Five Boro Psychological Services, P.C. As Assignee of Erasmo Pena v. Mvaic

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


May 26, 2011

FIVE BORO PSYCHOLOGICAL SERVICES, P.C. AS ASSIGNEE OF ERASMO PENA,
RESPONDENT,
v.
MVAIC,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 18, 2009. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint and granted the branch of plaintiff's cross motion seeking summary judgment upon a $1,061.63 bill. The appeal from the order is, in part, deemed to be from a judgment of the same court entered August 13, 2009 awarding plaintiff the principal sum of $1,061.63 (see CPLR 5501 [c]).

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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 26, 2011

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

ORDERED that the judgment entered August 13, 2009 is reversed, without costs, so much of the order entered June 18, 2009 as granted the branch of plaintiff's cross motion seeking summary judgment upon a bill for $1,061.63 is vacated and that branch of plaintiff's cross motion is denied; and it is further,

ORDERED that the order, insofar as appealed from and insofar as separately reviewed, 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) appeals from so much of an order of the Civil Court as denied its motion for summary judgment dismissing the complaint and granted the branch of plaintiff's cross motion seeking summary judgment upon a bill for $1,061.63. A judgment was subsequently entered with respect to the bill seeking the principal sum of $1,061.63, from which the appeal is deemed, in part, to be taken (see CPLR 5501 [c]).

Since plaintiff and its assignor were aware of the identity of the owner of the vehicle which had allegedly struck plaintiff's assignor, 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]). As plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle which had allegedly struck plaintiff's assignor, MVAIC's motion for summary judgment dismissing the complaint should have been granted.

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

Decision Date: May 26, 2011

20110526

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