New York SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
April 25, 2012
PARSONS MEDICAL SUPPLY, INC. AS ASSIGNEE OF BORIS SHNITMAN, RESPONDENT,
Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered March 10, 2010.
Parsons Med. Supply, Inc. 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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 25, 2012
PRESENT: PESCE, P.J., RIOS and ALIOTTA, JJ.
The order denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order 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 an order which denied its motion for summary judgment dismissing the complaint.
Since plaintiff's assignor was allegedly injured while riding as a passenger in an ambulette, 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 ; 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 ; Matter of AIU Ins. Co. v Marciante, 8 AD3d 266 ), the order of the Civil Court is reversed and defendant's motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: April 25, 2012
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