October 19, 2009
Fatiha Ibrahim, D.C. v MVAIC (2009 NY Slip Op 52125(U))
https://www.beynensonlaw.com/case-law/fatiha-ibrahim-d-c-v-mvaic-2009-ny-slip-op-52125u/
- Court
- Appellate Term, Second Department
- Decided
- October 19, 2009
- Citation
- 2009 NY Slip Op 52125(U) · 25 Misc 3d 130(A)
- Posture
- Summary judgment
- Outcome
- Provider 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 Fatiha Ibrahim, D.C. v MVAIC (2009 NY Slip Op 52125(U))
[*1]| Fatiha Ibrahim, D.C. v MVAIC |
| 2009 NY Slip Op 52125(U) [25 Misc 3d 130(A)] |
| Decided on October 19, 2009 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports.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., WESTON and RIOS, JJ
2008-1382 Q C.
against
MVAIC, Appellant.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A.
Lebedeff, J.), entered May 12, 2008. The order denied defendant’s motion for summary judgment
dismissing the complaint.
ORDERED that the order is 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 for summary judgment dismissing the complaint, arguing, inter alia, that the action was premature since plaintiff and plaintiff’s assignor failed to exhaust all remedies against the owner of the vehicle that plaintiff’s assignor was driving before seeking relief from MVAIC. The Civil Court denied MVAIC’s motion, holding that “MVAIC did not conform to the verification request protocol mandated by the Insurance Regulations of New York.”
Where, as here, plaintiff and his assignor are aware of the identity of the owner of the vehicle which plaintiff’s assignor was driving at the time of the accident, plaintiff, as assignee, is 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]; 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]). However, under the facts of this case, MVAIC’s motion for summary judgment was properly denied since the motion papers contained what appeared to be only the last page of an affidavit executed by MVAIC’s claims examiner, which did not establish, by one with personal knowledge of the facts, plaintiff’s failure to exhaust his remedies against the vehicle’s owner (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Accordingly, defendant did not demonstrate a prima facie entitlement to summary judgment and, thus, the order is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: October 19, 2009
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: MVAIC bore the burden on its eligibility / lack-of-coverage defense and did not meet it; claimant prevails on this point
Held MVAIC failed to make a prima facie showing that the provider had not exhausted remedies against the known vehicle owner, because its claims examiner's affidavit was incomplete and lacked personal knowledge.
Of the 223 decisions on this question in the Second Department courts and the Court of Appeals, 23 (this one included) are in the same category.
Cited in this decision
- Complete Med. Servs. of N.Y., P.C. v MVAIC (2008 NY Slip Op 51541(U))A 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
- Farragut Med., P.C. v MVAIC (2012 NY Slip Op 50754(U))The provider raised a factual issue about exhaustion of remedies against the vehicle's owner, defeating MVAIC's summary judgment motion.
- AR Med. Rehabilitation, P.C. v MVAIC (2010 NY Slip Op 51349(U))MVAIC obtained summary judgment because no proof established exhaustion of remedies against the known owner of the vehicle.
- Central Radiology Servs., P.C. v MVAIC (2011 NY Slip Op 50617(U))The provider failed to demonstrate exhaustion of remedies against the known vehicle owner before seeking benefits from MVAIC. The Appellate Term, Second Department, reversed the provider's judgment, vacated the underlying order, granted MVAIC's summary judgment motion dismissing the complaint, and denied the provider's cross motion.
- Vladenn Med. Supply Corp. v MVAIC (2012 NY Slip Op 51491(U))A provider aware of the offending vehicle owner's identity must exhaust remedies against that owner before seeking payment from MVAIC. The provider sought assigned first-party no-fault benefits for an assignor allegedly riding in a vehicle struck by another vehicle.
- D & R Med. Supply, Inc. v MVAIC (2012 NY Slip Op 51625(U))A provider must exhaust remedies against a known offending vehicle owner before seeking assigned no-fault benefits from MVAIC. The provider and assignor knew the identity of the owner of the vehicle that struck the assignor.