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)
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 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| This opinion is uncorrected and will not be published in the printed Official Reports.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
PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2012-1327 Q C
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.
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.
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.