September 27, 2016

BES Med. Supply, Inc. v MVAIC (2016 NY Slip Op 51427(U))

https://www.beynensonlaw.com/case-law/bes-med-supply-inc-v-mvaic-2016-ny-slip-op-51427u/

Court: Appellate Term, Second Department
Decided: September 27, 2016
Citation: 2016 NY Slip Op 51427(U) · 53 Misc 3d 134(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Issues: MVAIC
Legal questions: MVAIC eligibility: qualified covered person (see the maps)

Cite as

BES Med. Supply, Inc. v MVAIC, 53 Misc 3d 134(A), 2016 NY Slip Op 51427(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.

A provider must exhaust remedies against the known owner of the striking vehicle before seeking benefits from MVAIC. The provider and assignor knew the identity of the owner of the vehicle that struck the vehicle in which the assignor was a passenger. Under Hauswirth v American Home Assur. Co., the provider, as assignee, had to exhaust remedies against that owner before pursuing MVAIC. It did not demonstrate that it had done so. The Appellate Term, Second Department, reversed the order denying MVAIC's motion and granted summary judgment dismissing the provider's assigned no-fault complaint.

Reported in New York Official Reports at BES Med. Supply, Inc. v MVAIC (2016 NY Slip Op 51427(U))

[*1]

BES Med. Supply, Inc. v MVAIC

2016 NY Slip Op 51427(U) [53 Misc 3d 134(A)]

Decided on September 27, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 September 27, 2016

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

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-888 K C

BES Medical Supply, Inc., as Assignee of SHARELLE GARCIA, Respondent,

against

MVAIC, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered September 13, 2013. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order 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 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 had struck the vehicle in which the assignor was a passenger, 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]; Modern Art Med., P.C. v MVAIC, 22 Misc 3d 126[A], 2008 NY Slip Op 52586[U] [App Term, 2d Dept, 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 Dept, 2d & 11th Jud Dists 2008]). Here, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle.

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decision Date: September 27, 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

Held the provider had to exhaust its remedies against the known owner of the vehicle that struck the assignor's vehicle, and granted MVAIC 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.

Modern Art Med., P.C. v MVAIC (2008 NY Slip Op 52586(U)) FollowedThe provider failed to show exhaustion of remedies against the vehicle owner before seeking no-fault benefits from MVAIC. The provider obtained summary judgment and a judgment for assigned benefits, which MVAIC challenged on exhaustion grounds.
Doctor Liliya Med., P.C. v MVAIC (2008 NY Slip Op 52453(U)) FollowedA provider whose assignor knows the vehicle's driver and owner must exhaust remedies against them before seeking relief from MVAIC. MVAIC moved under CPLR 3211 (a) (7) to dismiss the provider's action for assigned no-fault benefits as premature.

Similar decisions

Medcare Supply, Inc. v MVAIC (2016 NY Slip Op 51414(U))A provider aware of the vehicle owner's identity must exhaust remedies against that owner before seeking benefits from MVAIC. The provider and assignor knew the identity of the owner of the vehicle in which the assignor had been a passenger at the time of the accident.
Compas Med., P.C. v MVAIC (2015 NY Slip Op 50774(U))A provider that knows who owns the vehicle that struck its assignor must exhaust remedies against that owner before seeking MVAIC relief.
Metropolitan Med. Supplies, LLC v MVAIC (2013 NY Slip Op 51583(U))A provider aware of the owner of the vehicle that struck its assignor must exhaust remedies against that owner before seeking MVAIC benefits.
East Gun Hill Med., P.C. v MVAIC (2015 NY Slip Op 50409(U))A provider that knows who owns the vehicle that struck its assignor must exhaust remedies against that owner before seeking MVAIC relief.
D & R Med. Supply, Inc. v MVAIC (2012 NY Slip Op 51625(U))A provider must exhaust remedies against a known offending vehicle owner before seeking assigned no-fault benefits from MVAIC. The provider and assignor knew the identity of the owner of the vehicle that struck the assignor.