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Whole Health Acupuncture, P.C. As Assignee of Elizabeth Rainey v. Mvaic

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


December 23, 2011

WHOLE HEALTH ACUPUNCTURE, P.C. AS ASSIGNEE OF ELIZABETH RAINEY,
RESPONDENT,
v.
MVAIC,
APPELLANT.

Appeal from a judgment of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered March 6, 2009.

Whole Health Acupuncture, P.C. v MVAIC

Decided on December 23, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

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

The judgment, after a non-jury trial, awarded plaintiff the principal sum of $4,420. The appeal from the judgment brings up for review an order of the same court (Diane A. Lebedeff, J.) entered February 13, 2009 which granted plaintiff's motion to vacate a prior order entered on default and, upon such vacatur, denied defendant's underlying motion for summary judgment.

ORDERED that the judgment is reversed, without costs, so much of the order entered February 13, 2009 as denied defendant's underlying motion for summary judgment dismissing the complaint is vacated, 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 Corp. (sued herein as MVAIC) moved for summary judgment dismissing the complaint on the ground that, among other things, there was no coverage because no proof had been provided establishing that all insurance remedies against the owner of the vehicle had been exhausted. Although plaintiff did not oppose the motion, the Civil Court denied the motion without prejudice to renewal. MVAIC subsequently moved for leave to renew and/or reargue. By order entered October 1, 2007, MVAIC's unopposed motion for leave to reargue was granted and, upon reargument, summary judgment was awarded to MVAIC dismissing the complaint. Plaintiff eventually moved pursuant to CPLR 5015 to vacate the October 1, 2007 order and, upon such vacatur, to deny MVAIC's underlying motion for summary judgment. By order entered February 13, 2009, the Civil Court (Diane A. Lebedeff, J.) vacated the October 1, 2007 order and denied MVAIC's motion for summary judgment dismissing the complaint. After trial, a judgment was entered awarding plaintiff the principal sum of $4,420. MVAIC's appeal from the judgment brings up for review the February 13, 2009 order (see CPLR 5501 [a] [1]).

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]). Here, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle. To the extent that the Civil Court denied MVAIC's motion on the ground that MVAIC had not established that its "verification requests" were mailed to plaintiff or plaintiff's assignor, such ground lacks merit under the circumstances of this case (cf. New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004]).

In view of the foregoing, MVAIC's motion for summary judgment should have been granted. We reach no other issue.

Accordingly, the judgment is reversed, so much of the order entered February 13, 2009 as denied defendant's underlying motion for summary judgment dismissing the complaint is vacated, and defendant's motion for summary judgment dismissing the complaint is granted.

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

Decision Date: December 23, 2011

20111223

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