Reported in New York Official Reports at AP Orthopedic & Rehabilitation, P.C. v Mercury Cas. Co. (2014 NY Slip Op 51794(U))
[*1]| AP Orthopedic & Rehabilitation, P.C. v Mercury Cas. Co. |
| 2014 NY Slip Op 51794(U) [46 Misc 3d 128(A)] |
| Decided on December 17, 2014 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 December 17, 2014
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-564 Q C
against
Mercury Casualty Company, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered February 8, 2012. The order, insofar as appealed from and as limited by the brief, denied defendant’s motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, is reversed, with $30 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 moved for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs), and plaintiff cross-moved for summary judgment. The Civil Court denied defendant’s motion and plaintiff’s cross motion and held that the only remaining issue for trial was the propriety of defendant’s IME scheduling letters. Defendant argues on appeal that its motion for summary judgment dismissing the complaint should have been granted.
Contrary to the determination of the Civil Court, we find that defendant’s IME scheduling letters comply with the No-Fault Regulations (see 11 NYCRR 65-3.5 [e]). As plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014Great Health Care Chiropractic, P.C. v Maya Assur. Co. (2014 NY Slip Op 51803(U))
Reported in New York Official Reports at Great Health Care Chiropractic, P.C. v Maya Assur. Co. (2014 NY Slip Op 51803(U))
[*1]| Great Health Care Chiropractic, P.C. v Maya Assur. Co. |
| 2014 NY Slip Op 51803(U) [46 Misc 3d 129(A)] |
| Decided on December 17, 2014 |
| 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 December 17, 2014
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-925 K C
against
Maya Assurance Company, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered January 18, 2012. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment, and defendant cross-moved to dismiss the complaint on the ground that it had timely and properly denied the claim at issue on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs). The Civil Court denied plaintiff’s motion and granted defendant’s cross motion.
Plaintiff correctly argues on appeal that defendant’s cross motion papers failed to establish that the letters scheduling the IMEs of plaintiff’s assignor had been mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Consequently, defendant failed to demonstrate that the IMEs had been properly scheduled and, thus, that it is entitled to summary judgment dismissing the complaint.
However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).
We decline plaintiff’s request to limit the issues for trial (see CPLR 3212 [g]).
Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014New Way Med. Supply Corp. v MVAIC (2014 NY Slip Op 51805(U))
Reported in New York Official Reports at New Way Med. Supply Corp. v MVAIC (2014 NY Slip Op 51805(U))
[*1]| New Way Med. Supply Corp. v MVAIC |
| 2014 NY Slip Op 51805(U) [46 Misc 3d 129(A)] |
| Decided on December 17, 2014 |
| 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 December 17, 2014
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-956 K C
against
MVAIC, Respondent.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 15, 2012. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, without costs, plaintiff’s motion for summary judgment is granted, defendant’s cross motion for summary judgment dismissing the complaint is denied, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees.
In this action by a provider to recover assigned first-party no fault benefits, the Civil Court denied plaintiff’s motion for summary judgment and granted defendant’s
cross motion for summary judgment dismissing the complaint, finding that defendant had established its defense based upon the failure of plaintiff’s assignor to appear for duly scheduled examinations under oath (EUOs).
The affidavit submitted by plaintiff’s employee was sufficient to establish plaintiff’s prima facie entitlement to summary judgment (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 35 [2013]). In opposition to plaintiff’s motion and in support of its cross motion for summary judgment dismissing the complaint, defendant annexed a sworn stenographic transcript to show that plaintiff’s assignor had failed to appear for the second scheduled EUO. However, defendant failed to demonstrate, by proof in admissible form, that plaintiff’s assignor had failed to appear for the first duly scheduled EUO. As a result, defendant failed to sufficiently establish its defense that plaintiff’s assignor had failed to appear for duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).
In light of the foregoing, we reach no other issue.
Accordingly, the order is reversed, plaintiff’s motion for summary judgment is granted, defendant’s cross motion for summary judgment dismissing the complaint is denied, and the matter is remitted to the Civil Court for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 and the regulations promulgated thereunder.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014Advanced Psychological Care, P.C. v MVAIC (2014 NY Slip Op 51809(U))
Reported in New York Official Reports at Advanced Psychological Care, P.C. v MVAIC (2014 NY Slip Op 51809(U))
[*1]| Advanced Psychological Care, P.C. v MVAIC |
| 2014 NY Slip Op 51809(U) [46 Misc 3d 129(A)] |
| Decided on December 17, 2014 |
| 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 December 17, 2014
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1301 RI C
against
MVAIC, Appellant.
Appeal from an order of the Civil Court of the City of New York, Richmond County (Orlando Marrazzo, Jr., J.), entered March 29, 2012. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first party no-fault benefits, defendant appeals from an order of the Civil Court which granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. On appeal, defendant argues that it is entitled to summary judgment dismissing the complaint because it demonstrated that plaintiff’s assignor had failed to appear for properly scheduled independent medical examinations (IMEs).
Inasmuch as defendant raises no issue on appeal with respect to plaintiff’s prima facie case, we do not pass upon the propriety of the Civil Court’s determination with respect thereto.
While defendant submitted an affidavit executed by an employee of Medical Consultants Network, the company which had been retained by defendant to schedule the IMEs, the affidavit did not sufficiently set forth a standard office practice or procedure to establish that the scheduling letters had been properly addressed and mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Consequently, defendant failed to demonstrate that the IMEs had been properly scheduled, and, thus, its cross motion was properly denied.
Accordingly, the order is affirmed.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014Complete Spinal Physical Therapy & Chiropractic, PLLC v MVAIC (2014 NY Slip Op 51811(U))
Reported in New York Official Reports at Complete Spinal Physical Therapy & Chiropractic, PLLC v MVAIC (2014 NY Slip Op 51811(U))
[*1]| Complete Spinal Physical Therapy & Chiropractic, PLLC v MVAIC |
| 2014 NY Slip Op 51811(U) [46 Misc 3d 129(A)] |
| Decided on December 17, 2014 |
| 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 December 17, 2014
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1327 Q C
against
MVAIC, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered January 21, 2010, deemed from a judgment of the same court entered May 17, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 21, 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 $6,189.53.
ORDERED that the judgment is reversed, with $30 costs, the order entered January 21, 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 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]). Here, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle.
Accordingly, the judgment is reversed, the order entered January 21, 2010 is vacated, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014Interboro Med. Care v MVAIC (2014 NY Slip Op 51813(U))
Reported in New York Official Reports at Interboro Med. Care v MVAIC (2014 NY Slip Op 51813(U))
[*1]| Interboro Med. Care v MVAIC |
| 2014 NY Slip Op 51813(U) [46 Misc 3d 130(A)] |
| Decided on December 17, 2014 |
| 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 December 17, 2014
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1360 K C
against
MVAIC, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered March 19, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint or, in the alternative, to reduce plaintiff’s ad damnum clause.
ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for $3,112.85 is granted; as so modified, the order is affirmed, without costs.
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 on the ground that the action had been commenced after the statute of limitations had expired or, in the alternative, to reduce plaintiff’s ad damnum clause.
A defendant moving for dismissal on statute of limitations grounds bears the initial burden of establishing, prima facie, that the time in which to commence the action has expired (see 6D Farm Corp. v Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). In this case, MVAIC established that so much of the action as sought to recover upon a claim for $3,112.85 had been commenced after the expiration of the statute of limitations. In opposition, plaintiff failed to raise an issue of fact as to its timeliness (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429, 429 [2004]; Precision Radiology Servs., P.C. v MVAIC, 34 Misc 3d 126[A], 2011 NY Slip Op 52274[U] [App Term, 2d, 11th & 13th Jud Dists 2011]).
With respect to so much of the complaint as sought to recover upon a claim for $5,009, the record does not establish all of the facts necessary to determine when the cause of action accrued (see e.g. Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]). As a result, defendant failed to prove, as a matter of law, that so much of the action as sought to recover upon this claim is barred by the statute of limitations (see Bell Air Med. Supply, LLC v MVAIC, 16 Misc 3d 135[A], 2007 NY Slip Op 51607[U] [App Term, 2d & 11th Jud Dists 2007]).
Defendant’s contention regarding the ad damnum clause lacks merit.
Accordingly, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a [*2]claim for $3,112.85 is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014Great Health Care Chiropractic, P.C. v Hertz Co. (2014 NY Slip Op 51814(U))
Reported in New York Official Reports at Great Health Care Chiropractic, P.C. v Hertz Co. (2014 NY Slip Op 51814(U))
[*1]| Great Health Care Chiropractic, P.C. v Hertz Co. |
| 2014 NY Slip Op 51814(U) [46 Misc 3d 130(A)] |
| Decided on December 17, 2014 |
| 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 December 17, 2014
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1369 K C
against
Hertz Co., Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered January 30, 2012, deemed from a judgment of the same court entered May 2, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the January 30, 2012 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 $1,310.94.
ORDERED that the judgment is reversed, without costs, so much of the order entered January 30, 2012 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied.
In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court 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]).
Defendant correctly argues on appeal that plaintiff’s motion should have been denied because defendant proved that it had timely mailed the denial of claim form at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]), and plaintiff failed to establish that the denial was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]).
However, defendant failed to establish its entitlement to summary judgment dismissing the complaint. Defendant denied the claim at issue based upon plaintiff’s assignor’s failure to appear for examinations under oath (EUOs) and independent medical examinations (IMEs). Defendant failed, among other things, to establish a proper practice and procedure as to the mailing of the IME scheduling notices (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16) and failed to submit proof by someone with personal knowledge of the nonappearance of plaintiff’s assignor for the EUOs in question (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [*2][App Term, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d, 11th & 13th Jud Dists 2013]). As defendant failed to establish either of its defenses as a matter of law, its cross motion was properly denied.
Accordingly, the judgment is reversed, so much of the order entered January 30, 2012 as granted plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion is denied. Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014Optimal Well-Being Chiropractic, P.C. v MVAIC (2014 NY Slip Op 51816(U))
Reported in New York Official Reports at Optimal Well-Being Chiropractic, P.C. v MVAIC (2014 NY Slip Op 51816(U))
[*1]| Optimal Well-Being Chiropractic, P.C. v MVAIC |
| 2014 NY Slip Op 51816(U) [46 Misc 3d 130(A)] |
| Decided on December 17, 2014 |
| 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 December 17, 2014
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1438 K C
against
MVAIC, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered May 1, 2012. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, 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 of the Civil Court which granted plaintiff’s motion for summary
judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.
Since plaintiff and its assignor were aware of the identity of the owner of the vehicle which the assignor had been driving 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
order is reversed, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.
Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014Optimal Well-Being Chiropractic, P.C. v MVAIC (2014 NY Slip Op 51817(U))
Reported in New York Official Reports at Optimal Well-Being Chiropractic, P.C. v MVAIC (2014 NY Slip Op 51817(U))
[*1]| Optimal Well-Being Chiropractic, P.C. v MVAIC |
| 2014 NY Slip Op 51817(U) [46 Misc 3d 130(A)] |
| Decided on December 17, 2014 |
| 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 December 17, 2014
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1481 Q C
against
MVAIC, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph E. Capella, J.), entered May 18, 2012, deemed from a judgment of the same court entered June 6, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 18, 2012 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 $2,330.50.
ORDERED that the judgment is reversed, with $30 costs, the order entered May 18, 2012 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 of the Civil Court, entered May 18, 2012, 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 defendant established that there had been no timely filing of a notice of claim and that leave had not been sought to file a late notice of claim (see Insurance Law § 5208 [a], [c]), plaintiff’s assignor is not a “covered person” (Insurance Law § 5221 [b] [2]). Thus, a condition precedent to plaintiff’s right to apply for payment of no-fault benefits from defendant has not been satisfied (M.N.M. Med. Health Care, P.C. v MVAIC, 22 Misc 3d 128[A], 2009 NY Slip Op 50041[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Bell Air Med. Supply, LLC v MVAIC, 16 Misc 3d 135[A], 2007 NY Slip Op 51607[U] [App Term, 2d & 11th Jud Dists 2007]; Ocean Diagnostic Imaging v Motor Veh. Acc. Indem. Corp., 8 Misc 3d 137[A], 2005 NY Slip Op 51271[U] [App Term, 2d & 11th Jud Dists 2005]). In light of the foregoing, we reach no other issue.
Accordingly, the judgment is reversed, the order entered May 18, 2012 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., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014Optimal Well-Being Chiropractic, P.C. v MVAIC (2014 NY Slip Op 51818(U))
Reported in New York Official Reports at Optimal Well-Being Chiropractic, P.C. v MVAIC (2014 NY Slip Op 51818(U))
[*1]| Optimal Well-Being Chiropractic, P.C. v MVAIC |
| 2014 NY Slip Op 51818(U) [46 Misc 3d 130(A)] |
| Decided on December 17, 2014 |
| 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 December 17, 2014
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1484 Q C
against
MVAIC, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph E. Capella, J.), entered May 18, 2012, deemed from a judgment of the same court entered June 6, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the May 18, 2012 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 $2,330.56.
ORDERED that the judgment is reversed, with $30 costs, the order entered May 18, 2012 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 of the Civil Court 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 which had struck the assignor, 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.
Accordingly, the judgment is reversed, the order entered May 18, 2012 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., Aliotta and Solomon, JJ., concur.
Decision Date: December 17, 2014