October 18, 2011
BLR Chiropractic, P.C. v MVAIC (2011 NY Slip Op 51878(U))
https://www.beynensonlaw.com/case-law/blr-chiropractic-p-c-v-mvaic-2011-ny-slip-op-51878u/
- Court
- Appellate Term, Second Department
- Decided
- October 18, 2011
- Citation
- 2011 NY Slip Op 51878(U) · 33 Misc 3d 131(A)
- Posture
- Summary judgment
- Outcome
- Insurer prevailed
- Later treatment
- Followed in 7 later decisions (see Cited by)
- Issues
- MVAIC
- Legal questions
- MVAIC eligibility: qualified covered person (see the maps)
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.
Reported in New York Official Reports at BLR Chiropractic, P.C. v MVAIC (2011 NY Slip Op 51878(U))
[*1]| BLR Chiropractic, P.C. v MVAIC |
| 2011 NY Slip Op 51878(U) [33 Misc 3d 131(A)] |
| Decided on October 18, 2011 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
PRESENT: : PESCE, P.J., RIOS and STEINHARDT, JJ
2010-917 K C.
against
MVAIC, Appellant.
Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn
Jimenez Salta, J.), entered September 10, 2009, deemed from a judgment of the same court
entered November 16, 2009 (see CPLR 5501 [c]). The judgment, entered pursuant to the
September 10, 2009 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 $3,083.30.
ORDERED that the judgment is reversed, without costs, the order entered September 10, 2009 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 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 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 [*2]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 judgment is reversed, the order 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., Rios and Steinhardt, JJ., concur.
Decision Date: October 18, 2011
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.
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 that because the provider and assignor knew the owner of the vehicle the assignor rode in, the provider had to exhaust remedies against that owner and, having not shown exhaustion, its claim was dismissed.
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.
- Dr. Abakin, D.C., P.C. v MVAIC (2008 NY Slip Op 52186(U)) FollowedThe provider's claim against MVAIC was premature because remedies against the known driver and owner had not been exhausted.
- Complete Med. Servs. of N.Y., P.C. v MVAIC (2008 NY Slip Op 51541(U)) FollowedA provider that knows the identities of the driver and vehicle owner must exhaust its remedies against them before seeking relief from MVAIC. The assignor was struck by a taxicab whose driver and owner were known, making the provider's claim against MVAIC premature.
Cited by
A label shows how the later decision treated this one.
- Arguelles, M.D., P.C. v Motor Veh. Acc. Indem. Corp. (2019 NY Slip Op 51156(U)) FollowedThe provider failed to exhaust remedies against the vehicle owner before seeking assigned no-fault benefits from MVAIC. At a nonjury trial, MVAIC's employee testified that the assignor was not a covered person because the provider had not established exhaustion.
- Armengol v MVAIC (2021 NY Slip Op 51207(U)) FollowedMVAIC obtained dismissal of two assignors' claims for failure to exhaust remedies against a known vehicle owner and failure to file timely notice.
- Lida’s Med. Supply, Inc. v MVAIC (2019 NY Slip Op 52071(U)) FollowedThe provider failed to demonstrate exhaustion of remedies against a known vehicle owner before seeking no-fault benefits from MVAIC. The assignor knew the identity of the owner of the vehicle the assignor was driving at the time of the accident.
- Tadros v MVAIC (2019 NY Slip Op 52066(U)) FollowedThe provider failed to show exhaustion of remedies against a known vehicle owner before seeking assigned no-fault benefits from MVAIC. The assignor was a passenger in the vehicle at the time of the accident and knew the owner's identity.
- Atlantic Chiropractic, P.C. v MVAIC (2019 NY Slip Op 51374(U)) FollowedThe provider failed to exhaust remedies against the known owner of the vehicle that struck its assignor before seeking MVAIC benefits.
- AR Med. Rehabilitation, P.C. v MVAIC (2019 NY Slip Op 51057(U)) FollowedA 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.
- 3 Star Acupuncture, P.C. v MVAIC (2016 NY Slip Op 51609(U)) FollowedThe 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.
- GAO Acupuncture, P.C. v MVAIC (2025 NY Slip Op 51173(U))A passenger's assignee must exhaust remedies against a known vehicle owner before seeking benefits from MVAIC. The provider sought assigned first-party no-fault benefits from MVAIC for an assignor who was a passenger and knew the vehicle owner's identity.
- Yklik, Inc. v MVAIC (2014 NY Slip Op 50961(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 obtained summary judgment on its assigned no-fault claims, and MVAIC's cross motion for summary judgment dismissing the complaint was denied.
- 3 Star Acupuncture, P.C. v MVAIC (2012 NY Slip Op 51708(U))A provider and assignor who know the vehicle owner's identity must exhaust remedies against that owner before seeking payment from MVAIC. The provider and its assignor knew the identity of the owner of the vehicle in which the assignor had been a passenger.
Similar decisions
- 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.
- Complete Spinal Physical Therapy & Chiropractic, PLLC v MVAIC (2014 NY Slip Op 51811(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 when the accident occurred.
- Optimal Well-Being Chiropractic, P.C. v MVAIC (2014 NY Slip Op 51818(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 that had struck the assignor, but the provider did not demonstrate exhaustion of its remedies against the owner.
- East Gun Hill Med., P.C. v MVAIC (2014 NY Slip Op 50965(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 assignor knew the identity of the owner of the vehicle in which the assignor was a passenger when the accident occurred.
- 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.