November 2, 2018

Continental Med., P.C. v MVAIC (2018 NY Slip Op 51549(U))

https://www.beynensonlaw.com/case-law/continental-med-p-c-v-mvaic-2018-ny-slip-op-51549u/

Court: Appellate Term, Second Department
Decided: November 2, 2018
Citation: 2018 NY Slip Op 51549(U) · 61 Misc 3d 136(A)
Posture: Trial
Outcome: Insurer prevailed
Issues: MVAIC
Legal questions: MVAIC eligibility: qualified covered person (see the maps)

Cite as

Continental Med., P.C. v MVAIC, 61 Misc 3d 136(A), 2018 NY Slip Op 51549(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

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.

The provider's trial judgment against MVAIC was reversed because exhaustion of remedies against the vehicle owner was not established. The Appellate Term, Second Department, deemed the claim premature under Matter of Acosta-Collado v Motor Veh. Acc. Indem. Corp. and Hauswirth v American Home Assur. Co. It remitted for entry of judgment dismissing the complaint in MVAIC's favor.

Reported in New York Official Reports at Continental Med., P.C. v MVAIC (2018 NY Slip Op 51549(U))

[*1]

Continental Med., P.C. v MVAIC

2018 NY Slip Op 51549(U) [61 Misc 3d 136(A)]

Decided on November 2, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 November 2, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2015-2611 Q C

Continental Medical, P.C., as Assignee of Edward Rivera, Respondent,

against

MVAIC, Appellant.

Marshall & Marshall, PLLC (Tracy Bader Pollack of counsel), for appellant. Israel, Israel & Purdy, LLP (Jennifer Greenhalgh Howard of counsel), for respondent.

Appeal from a decision of the Civil Court of the City of New York, Queens County (Larry Love, J.), dated October 29, 2014, deemed from a judgment of that court entered March 13, 2015 (see CPLR 5512 [a]). The judgment, entered pursuant to the decision, after a nonjury trial, awarded plaintiff the principal sum of $15,646.35.

ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

After a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the Civil Court awarded judgment to plaintiff in the principal sum of $15,646.35.

The evidence adduced at trial was insufficient to establish that plaintiff had exhausted its remedies against the vehicle’s owner (see Matter of Acosta-Collado v Motor Veh. Acc. Indem. Corp., 103 AD3d 714 [2013]; Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]). As a result, plaintiff’s claim is premature (see Matter of Acosta-Collado, 103 AD3d 714; Hauswirth, 244 AD2d 528; Dr. Abakin, D.C., P.C. v MVAIC, 21 Misc 3d 134[A], 2008 NY Slip Op 5218[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; see also Matter of Sweet v Motor Veh. Acc. Indem. Corp., 287 AD2d 510 [2001]; Matter of Troches v Motor Veh. Acc. Indem. Corp., 171 AD2d 873 [1991]).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

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

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 02, 2018

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

Reversed the trial judgment for the provider because the trial evidence did not establish exhaustion of remedies against the vehicle's owner, making the claim against MVAIC premature.

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

Dr. Abakin, D.C., P.C. v MVAIC (2008 NY Slip Op 52186(U))The provider's claim against MVAIC was premature because remedies against the known driver and owner had not been exhausted.

Similar decisions

Promed Durable Equip., Inc. v MVAIC (2019 NY Slip Op 51152(U))The provider's claim against MVAIC was premature because trial proof did not establish exhaustion of remedies against the vehicle owner.
Advanced Med. Diagnostics of Queens, P.C. v Mvaic (2015 NY Slip Op 51659(U))The provider failed at trial to show exhaustion of remedies against the known vehicle owner before seeking benefits from MVAIC. A prior order had limited the nonjury trial to whether MVAIC coverage existed.
AR Med. Rehabilitation, P.C. v MVAIC (2019 NY Slip Op 51057(U))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.
Healthway Med. Care, P.C. v MVAIC (2019 NY Slip Op 50692(U))A provider must exhaust remedies against all potential insurance carriers before seeking no-fault benefits from MVAIC. Following a nonjury trial, Civil Court awarded judgment to the provider on its assigned claims.
Compas Med., P.C. v MVAIC (2017 NY Slip Op 51467(U))The provider failed to demonstrate exhaustion of remedies against the known vehicle 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 had been a passenger.