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Ap Orthopedic & Rehabilitation, P.C. As Assignee of Elena Rumyantseva v. Mvaic

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


July 28, 2011

AP ORTHOPEDIC & REHABILITATION, P.C. AS ASSIGNEE OF ELENA RUMYANTSEVA,
RESPONDENT,
v.
MVAIC,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered December 14, 2009, deemed from a judgment of the same court entered December 21, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 14, 2009 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 $230.09.

Ap Orthopedic & Rehabilitation, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 28, 2011

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

ORDERED that the judgment is reversed, without costs, the order entered December 14, 2009 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 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]).

The record establishes that plaintiff's assignor never provided MVAIC with proof that she was a resident of the State of New York when the accident occurred. As a result, plaintiff's assignor is not a "qualified person" (Insurance Law § 5202 [b]; see RAZ Acupuncture, P.C. v MVAIC, 25 Misc 3d 138[A], 2009 NY Slip Op 52362[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Five Boro Psychological Servs., P.C. v MVAIC, 27 Misc 3d 131[A], 2010 NY Slip Op 50647[U] [App Term, 2d, 11th & 13th Jud Dists 2010]) and, thus, not a "covered person" (Insurance Law § 5221 [b] [2]; see Howard M. Rombon, Ph.D., P.C. v MVAIC, 21 Misc 3d 131[A], 2008 NY Slip Op 52128[U] [App Term, 2d & 11th Jud Dists 2008]). Consequently, a condition precedent to the right to apply for payment of no-fault benefits from MVAIC was not satisfied (see Five Boro Psychological Servs., P.C. v MVAIC, 27 Misc 3d 131[A], 2010 NY Slip Op 50647[U]). In any event, 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]). Accordingly, MVAIC is entitled to summary judgment dismissing the complaint. In view of the foregoing, the fact that MVAIC may be precluded from presenting evidence at trial due to its failure to comply with a so-ordered discovery stipulation is of no consequence.

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

Decision Date: July 28, 2011

20110728

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