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December 17, 2014

Complete Spinal Physical Therapy & Chiropractic, PLLC v MVAIC (2014 NY Slip Op 51811(U))

https://www.beynensonlaw.com/case-law/complete-spinal-physical-therapy-chiropractic-pllc-v-mvaic-2014-ny-slip-op-51811u/

Court
Appellate Term, Second Department
Decided
December 17, 2014
Citation
2014 NY Slip Op 51811(U) · 46 Misc 3d 129(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
MVAIC
Legal questions
MVAIC eligibility: qualified covered person (see the maps)
Cite as
Complete Spinal Physical Therapy & Chiropractic, PLLC v MVAIC, 46 Misc 3d 129(A), 2014 NY Slip Op 51811(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014)

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 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. The provider failed to demonstrate exhaustion of its remedies against that owner. The Appellate Term, Second Department, deemed MVAIC's appeal taken from the subsequently entered judgment under CPLR 5501 (c), reversed the judgment, vacated the underlying order, granted MVAIC's motion for summary judgment dismissing the complaint, and denied the provider's cross motion.

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This opinion is uncorrected and will not be published in the printed Official Reports.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
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1327 Q C

Complete Spinal Physical Therapy & Chiropractic, PLLC as Assignee of ALFONSO DELESLINE, Respondent,

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, 2014

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

Granted MVAIC summary judgment because the provider, knowing the owner of the vehicle in which the assignor was a passenger, did not demonstrate that it had exhausted its remedies against that owner.

  • Appellate DivisionApp Div 3
  • Appellate TermApp Term 192
  • Trial courtsTrial 28
2004, Appellate Division: 1 decision (1 Defense precluded/waived)2011, Appellate Division: 2 decisions (2 MVAIC failed to prove)2019, Appellate Term: 23 decisions (10 Found not eligible, 11 Claimant's proof lacking, 2 Defense precluded/waived)2025, Appellate Term: 5 decisions (2 Found not eligible, 1 Claimant's proof lacking, 2 MVAIC failed to prove)2026, Appellate Term: 5 decisions (3 Found not eligible, 2 MVAIC failed to prove)2005, Appellate Term: 2 decisions (1 Found not eligible, 1 Defense precluded/waived)2006, Appellate Term: 1 decision (1 Found not eligible)2007, Appellate Term: 4 decisions (1 Found not eligible, 1 MVAIC failed to prove, 2 Defense precluded/waived)2008, Appellate Term: 11 decisions (6 Claimant's proof lacking, 3 MVAIC failed to prove, 1 Unresolved / for trial, 1 Defense precluded/waived)2009, Appellate Term: 4 decisions (3 Found not eligible, 1 MVAIC failed to prove)2010, Appellate Term: 8 decisions (3 Found not eligible, 5 Claimant's proof lacking)2011, Appellate Term: 16 decisions (1 Found not eligible, 11 Claimant's proof lacking, 2 MVAIC failed to prove, 1 Found eligible, 1 Unresolved / for trial)2012, Appellate Term: 26 decisions (10 Found not eligible, 10 Claimant's proof lacking, 4 MVAIC failed to prove, 2 Unresolved / for trial)2013, Appellate Term: 9 decisions (2 Found not eligible, 6 Claimant's proof lacking, 1 Unresolved / for trial)2014, Appellate Term: 14 decisions (1 Found not eligible, 9 Claimant's proof lacking, 2 Found eligible, 1 Unresolved / for trial, 1 Defense precluded/waived)2015, Appellate Term: 13 decisions (2 Found not eligible, 10 Claimant's proof lacking, 1 MVAIC failed to prove)2016, Appellate Term: 15 decisions (2 Found not eligible, 10 Claimant's proof lacking, 2 Unresolved / for trial, 1 Defense precluded/waived)2017, Appellate Term: 17 decisions (8 Found not eligible, 9 Claimant's proof lacking)2018, Appellate Term: 5 decisions (1 Found not eligible, 4 Claimant's proof lacking)2020, Appellate Term: 1 decision (1 Claimant's proof lacking)2021, Appellate Term: 3 decisions (1 Found not eligible, 2 Defense precluded/waived)2022, Appellate Term: 7 decisions (4 Found not eligible, 2 Claimant's proof lacking, 1 Defense precluded/waived)2023, Appellate Term: 1 decision (1 Unresolved / for trial)2024, Appellate Term: 2 decisions (1 Found not eligible, 1 MVAIC failed to prove)2006, Trial courts: 5 decisions (2 Found not eligible, 2 Claimant's proof lacking, 1 Defense precluded/waived)2026, Trial courts: 2 decisions (2 Found not eligible)2004, Trial courts: 1 decision (1 Found eligible)2007, Trial courts: 2 decisions (1 Found not eligible, 1 Unresolved / for trial)2009, Trial courts: 2 decisions (1 MVAIC failed to prove, 1 Unresolved / for trial)2011, Trial courts: 1 decision (1 Found eligible)2012, Trial courts: 3 decisions (1 MVAIC failed to prove, 1 Unresolved / for trial, 1 Defense precluded/waived)2013, Trial courts: 1 decision (1 Found not eligible)2015, Trial courts: 1 decision (1 Found not eligible)2018, Trial courts: 1 decision (1 Found not eligible)2019, Trial courts: 3 decisions (1 Found not eligible, 1 Claimant's proof lacking, 1 Defense precluded/waived)2020, Trial courts: 1 decision (1 Defense precluded/waived)2021, Trial courts: 3 decisions (1 Found not eligible, 2 MVAIC failed to prove)2022, Trial courts: 1 decision (1 Claimant's proof lacking)2024, Trial courts: 1 decision (1 Unresolved / for trial)This decision
20052010201520202025
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.
  • 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.

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.
  • 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.
  • BLR Chiropractic, P.C. v MVAIC (2011 NY Slip Op 51878(U))A 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.
  • Metropolitan Med. Supplies, LLC v MVAIC (2013 NY Slip Op 51735(U))A provider seeking benefits from MVAIC must first exhaust remedies against a known owner of the vehicle that struck its assignor.
  • All Boro Psychological Servs., P.C. v MVAIC (2013 NY Slip Op 51744(U))A provider seeking benefits from MVAIC must first exhaust remedies against a known owner of the vehicle its assignor was driving.
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