SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS New York Supreme and/or Appellate Courts
August 6, 2012
VLADENN MEDICAL SUPPLY CORP. AS ASSIGNEE OF ZAKIYYAH HUMPHREY, RESPONDENT,
Appeal from an order of the Civil Court of the City of New York, Queens County (Genine D. Edwards, J.), entered September 30, 2010.
Vladenn Med. Supply Corp. 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 6, 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 of the Civil Court which denied defendant's motion for summary judgment dismissing the complaint.
Since plaintiff and its assignor were aware of the identity of the
owner of the vehicle which struck the vehicle in which plaintiff's
assignor was allegedly a passenger, 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 is reversed and
defendant's motion for summary judgment dismissing the complaint is
Pesce, P.J., Rios and Aliotta, JJ., concur. Decision Date: August 06, 2012
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