November 1, 2016

3 Star Acupuncture, P.C. v MVAIC (2016 NY Slip Op 51609(U))

https://www.beynensonlaw.com/case-law/3-star-acupuncture-p-c-v-mvaic-2016-ny-slip-op-51609u/

Court: Appellate Term, Second Department
Decided: November 1, 2016
Citation: 2016 NY Slip Op 51609(U) · 53 Misc 3d 146(A)
Posture: Trial
Outcome: Insurer prevailed
Issues: MVAIC
Legal questions: MVAIC eligibility: qualified covered person (see the maps)

Cite as

3 Star Acupuncture, P.C. v MVAIC, 53 Misc 3d 146(A), 2016 NY Slip Op 51609(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The provider failed at trial to demonstrate exhaustion of remedies against the known vehicle owner before pursuing MVAIC. The parties stipulated that exhaustion was the sole trial issue, and the only witness was an MVAIC employee who testified that the provider had not established it. Because the assignor knew the identity of the owner of the vehicle occupied at the time of the accident, the provider had to exhaust remedies against that owner under Hauswirth v American Home Assur. Co. The Appellate Term, Second Department, reversed the provider's judgment after the nonjury trial and remitted the matter for entry of judgment dismissing the complaint in MVAIC's favor.

Reported in New York Official Reports at 3 Star Acupuncture, P.C. v MVAIC (2016 NY Slip Op 51609(U))

[*1]

3 Star Acupuncture, P.C. v MVAIC

2016 NY Slip Op 51609(U) [53 Misc 3d 146(A)]

Decided on November 1, 2016

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 1, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2013-2678 K C

3 Star Acupuncture, P.C., as Assignee of JENNIFER GALARZA, Respondent,

against

MVAIC, Appellant.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered July 2, 2013. The judgment, entered pursuant to a decision of the same court dated March 19, 2013, after a nonjury trial, awarded plaintiff the principal sum of $3,690.

ORDERED that, on the court’s own motion, the notice of appeal from the decision dated March 19, 2013 is deemed a premature notice of appeal from the judgment entered July 2, 2013 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

At the commencement of a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the parties stipulated that the sole issue was whether plaintiff had exhausted its remedies. The only witness at trial was an employee of defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC), who testified that plaintiff’s assignor was not a covered person because plaintiff had not established that its remedies against the owner of the vehicle had been exhausted.

Since plaintiff’s assignor was aware of the identity of the owner of the vehicle which plaintiff’s assignor was in 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 (see Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Compas Med., P.C. v MVAIC, 42 Misc 3d 150[A], 2015 NY Slip Op 50414[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Here, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle (see BLR Chiropractic, P.C. v MVAIC, 33 Misc 3d 131[A], 2011 NY Slip Op 51878[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see also BLR Chiropractic, P.C. v MVAIC, 36 Misc 3d 129[A], 2011 NY Slip Op 52517[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 01, 2016

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

MVAIC eligibility: qualified covered person

Open the full map

Against MVAIC, was the claimant shown to be a qualified, covered person meeting article 52’s conditions?

This decision: Eligibility is treated as the claimant's burden / condition precedent and the claimant did not prove it; claim fails or is premature

At a trial limited by stipulation to exhaustion, held the provider had to exhaust remedies against the known owner of the vehicle the assignor was in, and directed dismissal because exhaustion was not demonstrated.

Found not eligibleClaimant's proof lackingMVAIC failed to proveFound eligibleUnresolved / for trialDefense precluded/waivedThis decisionCites it or cited by itCited or followed

Of the 223 decisions on this question in the Second Department courts and the Court of Appeals, 99 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Compas Med., P.C. v MVAIC (2014 NY Slip Op 50414(U))A provider aware of the vehicle owner's identity must exhaust remedies against that owner before seeking no-fault benefits from MVAIC. At the nonjury trial, the issues were whether the assignor was a covered person and eligible for benefits under an insurance policy.
BLR Chiropractic, P.C. v MVAIC (2011 NY Slip Op 51878(U)) FollowedA provider that knows the vehicle owner's identity must exhaust remedies against that owner before seeking relief from MVAIC. The provider sought assigned no-fault benefits for an assignor who had been a passenger in the vehicle.

Similar decisions

AR Med. Rehabilitation, P.C. v MVAIC (2019 NY Slip Op 51057(U))A provider must exhaust remedies against a known vehicle owner before seeking assigned no-fault benefits from MVAIC. At a nonjury trial, the parties stipulated that exhaustion was the sole issue.
Advanced Chiropractic of NY, P.C. v MVAIC (2015 NY Slip Op 50386(U))A provider aware of the vehicle owner's identity must exhaust remedies against that owner before seeking no-fault benefits from MVAIC. The provider and its assignor knew the identity of the owner of the vehicle in which the assignor had been a passenger at the time of the accident.
Atlantic Chiropractic, P.C. v MVAIC (2019 NY Slip Op 51374(U))The provider failed to exhaust remedies against the known owner of the vehicle that struck its assignor before seeking MVAIC benefits.
Advanced Med. Diagnostics of Queens, P.C. v Mvaic (2015 NY Slip Op 51659(U))The provider failed at trial to show exhaustion of remedies against the known vehicle owner before seeking benefits from MVAIC. A prior order had limited the nonjury trial to whether MVAIC coverage existed.
Tongren Acupuncturist, P.C. v MVAIC (2012 NY Slip Op 50418(U))The provider failed to show exhaustion of remedies against the known vehicle owner and therefore could not recover from MVAIC. The provider and its assignor knew the identity of the owner of the vehicle in which the assignor had been a passenger at the time of the accident.