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Blr Chiropractic, P.C. As Assignee of Jessica Tapia v. Mvaic

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


October 18, 2011

BLR CHIROPRACTIC, P.C. AS ASSIGNEE OF JESSICA TAPIA,
RESPONDENT,
v.
MVAIC, APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered September 10, 2009, deemed from a judgment of the same court entered November 16, 2009 (see CPLR 5501 [c]).

BLR Chiropractic, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 18, 2011

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

The judgment, entered pursuant to the September 10, 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 $3,083.30.

ORDERED that the judgment is reversed, without costs, the order entered September 10, 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]).

Since plaintiff and its assignor were aware of the identity of the owner of the vehicle in which the assignor had been a passenger at the time of the accident, 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, the judgment is reversed, the order is vacated, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.

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

Decision Date: October 18, 2011

20111018

© 1992-2011 VersusLaw Inc.



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