November 5, 2008

Dr. Abakin, D.C., P.C. v MVAIC (2008 NY Slip Op 52186(U))

https://www.beynensonlaw.com/case-law/dr-abakin-d-c-p-c-v-mvaic-2008-ny-slip-op-52186u/

Court: Appellate Term, Second Department
Decided: November 5, 2008
Citation: 2008 NY Slip Op 52186(U) · 21 Misc 3d 134(A)
Posture: Motion to dismiss (CPLR 3211)
Outcome: Insurer prevailed
Later treatment: Followed in 30 later decisions (see Cited by)
Issues: MVAIC
Legal questions: MVAIC eligibility: qualified covered person (see the maps)

Cite as

Dr. Abakin, D.C., P.C. v MVAIC, 21 Misc 3d 134(A), 2008 NY Slip Op 52186(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2008)

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 claim against MVAIC was premature because remedies against the known driver and owner had not been exhausted. The assignor was a passenger in the vehicle, and both the provider and assignor knew its driver and owner. Following Hauswirth v American Home Assur. Co., the Appellate Term, Second Department, affirmed dismissal under CPLR 3211 (a) (7). On that motion, the inquiry was whether the provider had a cause of action, rather than merely whether it had stated one. The provider could assert a claim against MVAIC after exhausting its remedies against those parties.

Reported in New York Official Reports at Dr. Abakin, D.C., P.C. v MVAIC (2008 NY Slip Op 52186(U))

[*1]

Dr. Abakin, D.C., P.C. v MVAIC

2008 NY Slip Op 52186(U) [21 Misc 3d 134(A)]

Decided on November 5, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 5, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2007-1032 K C.

Dr. Abakin, D.C., P.C. a/a/o LOUIS JONAS, Appellant,

against

MVAIC, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Sylvia G. Ash, J.), entered April 24, 2007. The order granted defendant’s motion to dismiss the complaint.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved to dismiss the complaint for failure to state a cause of action (CPLR 3211 [a] [7]), arguing, inter alia, that the action is premature because all possible remedies against the owner and driver of the vehicle in which plaintiff’s assignor was a passenger were not exhausted before plaintiff sought relief from MVAIC. The court granted the motion, and this appeal ensued.

The Appellate Division, Second Department, has stated that, in reviewing a motion to dismiss a complaint for failure to state a cause of action, a court must “determine whether the proponent of the pleading has a cause of action, not whether [it] has stated one” (Meyer v Guinta, 262 AD2d 463, 464 [1999]; see also Parsippany Constr. Co., Inc. v Clark Patterson Assoc., P.C., 41 AD3d 805, 806 [2007]). Since plaintiff and its assignor are aware of the identities of the driver and owner of the vehicle in which plaintiff’s assignor was a passenger at the time of the accident, plaintiff, as assignee, must first exhaust its remedies against the vehicle’s driver and owner before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1977]; Complete Med. Servs. of N.Y., P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip [*2]Op 51541[U] [App Term, 2d & 11th Jud Dists 2008]). Until plaintiff exhausts its remedies, its claim against MVAIC is premature (Hauswirth, 244 AD2d 528). Accordingly, the motion to dismiss was properly granted. We note that if plaintiff exhausts its remedies against those parties, plaintiff may then assert a claim against MVAIC.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: November 05, 2008

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 action premature and properly dismissed because the provider and assignor knew the driver and owner of the vehicle in which the assignor was a passenger and had not exhausted remedies against them.

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.

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 (42)

A label shows how the later decision treated this one.

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.
BLR Chiropractic, P.C. v MVAIC (2011 NY Slip Op 51878(U)) FollowedA 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.
Promed Durable Equip., Inc. v MVAIC (2019 NY Slip Op 51152(U)) FollowedThe provider's claim against MVAIC was premature because trial proof did not establish exhaustion of remedies against the vehicle owner.
B.Y., M.D., P.C. v Motor Veh. Acc. Indem. Corp. (2011 NY Slip Op 50984(U)) FollowedProviders aware of the vehicle owner's identity must exhaust remedies against that owner before seeking no-fault benefits from MVAIC. The providers and their assignor knew the identity of the owner of the vehicle alleged to have struck the assignor, but the providers did not demonstrate exhaustion.
Medcare Supply, Inc. v MVAIC (2016 NY Slip Op 51414(U)) FollowedA 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.
East Gun Hill Med., P.C. v MVAIC (2015 NY Slip Op 50409(U)) FollowedA provider that knows who owns the vehicle that struck its assignor must exhaust remedies against that owner before seeking MVAIC relief.
Advanced Chiropractic of NY, P.C. v MVAIC (2015 NY Slip Op 50386(U)) FollowedA 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.
Delta Diagnostic Radiology, P.C. v MVAIC (2015 NY Slip Op 50385(U)) FollowedA provider with sufficient information to identify the vehicle owner must exhaust remedies against that owner before seeking MVAIC benefits.
Jamaica Med. Supply, Inc. v MVAIC (2014 NY Slip Op 51823(U)) FollowedA provider aware of the vehicle owner's identity must exhaust remedies against that owner before seeking no-fault benefits from MVAIC. The provider sought assigned benefits after its assignor was struck by a vehicle whose owner was known to both the provider and the assignor.
Optimal Well-Being Chiropractic, P.C. v MVAIC (2014 NY Slip Op 51818(U)) FollowedA 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.

Show all 42 citing decisions

Similar decisions

Doctor Liliya Med., P.C. v MVAIC (2008 NY Slip Op 52453(U))A 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.
Complete Med. Servs. of NY, P.C. v MVAIC (2008 NY Slip Op 51864(U))A provider that knows the owner of the vehicle that struck its assignor must exhaust remedies against that owner before seeking MVAIC benefits.
Ap Orthopedic & Rehabilitation, P.C. v Mvaic (2011 NY Slip Op 51448(U))The assignor's failure to provide proof of New York residency defeated the provider's claim for no-fault benefits from MVAIC. The Appellate Term, Second Department, found that the assignor was neither a qualified person under Insurance Law § 5202 (b) nor a covered person under Insurance Law § 5221 (b) (2), leaving a condition precedent unsatisfied.
A.C. Med., P.C. v MVAIC (2019 NY Slip Op 51698(U))A provider must exhaust remedies against all potential insurance carriers before seeking assigned no-fault benefits from MVAIC. The provider appealed an order granting MVAIC summary judgment dismissing the complaint and denying the provider's cross motion for summary judgment.