March 1, 2019

AR Med. Rehabilitation, P.C. v MVAIC (2019 NY Slip Op 51057(U))

Headnote

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. The assignor knew the identity of the owner of the vehicle that struck the assignor, but the provider failed to demonstrate that it had exhausted remedies against that owner. Following Hauswirth v American Home Assur. Co. and Compas Med., P.C. v MVAIC, the Appellate Term, Second Department, reversed the provider's judgment and remitted the matter to the Civil Court, Kings County, for entry of judgment dismissing the complaint in MVAIC's favor.

Reported in New York Official Reports at AR Med. Rehabilitation, P.C. v MVAIC (2019 NY Slip Op 51057(U))

[*1]
AR Med. Rehabilitation, P.C. v MVAIC
2019 NY Slip Op 51057(U) [64 Misc 3d 132(A)]
Decided on March 1, 2019
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected in part through June 28, 2019; it will not be published in the printed Official Reports.


Decided on March 1, 2019
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, BERNICE D. SIEGAL, JJ
2017-94 K C

AR Medical Rehabilitation, P.C., as Assignee of Elliot Moody, Respondent,

against

MVAIC, Appellant.


Marshall & Marshall, PLLC (Tracy Bader Pollak of counsel), for appellant. Gary Tsirelman, P.C. (Stefan Belinfanti of counsel), for respondent.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered September 28, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $15,154.91.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of 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 struck plaintiff’s assignor 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], 2014 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 judgment in favor of defendant dismissing the complaint.

PESCE, P.J., ALIOTTA and SIEGAL, JJ., concur.


ENTER:
Paul Kenny
Chief Clerk
Decision Date: March 01, 2019

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