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Tongren Acupuncturist, P.C. As Assignee of Carlos Davila v. Mvaic

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


March 6, 2012

TONGREN ACUPUNCTURIST, P.C. AS ASSIGNEE OF CARLOS DAVILA,
RESPONDENT,
v.
MVAIC,
APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered February 9, 2010, deemed from a judgment of the same court entered May 10, 2010 (see CPLR 5501 [c]).

Tongren Acupuncturist, P.C. v MVAIC

Decided on March 6, 2012

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This opinion is uncorrected and will not be published in the printed Official Reports.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: WESTON, J.P., RIOS and ALIOTTA, JJ

The judgment, entered pursuant to the February 9, 2010 order denying defendant's motion for summary judgment dismissing the complaint and granting plaintiff's cross motion for summary judgment, awarded plaintiff the principal sum of $299.88.

ORDERED that the judgment is reversed, without costs, the order entered February 9, 2010 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

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 of the Civil Court entered February 9, 2010 which denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment. 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 (see e.g. Matter of Progressive Northeastern Ins. Co. v Barnes, 30 AD3d 523 [2006]; Matter of AIU Ins. Co. v Marciante, 8 AD3d 266 [2004]), the judgment is reversed, the order entered February 9, 2010 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

Weston, J.P., Rios and Aliotta, JJ., concur. Decision Date: March 06, 2012

20120306

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