May 26, 2011

Five Boro Psychological Servs., P.C. v MVAIC (2011 NY Slip Op 50989(U))

https://www.beynensonlaw.com/case-law/five-boro-psychological-servs-p-c-v-mvaic-2011-ny-slip-op-50989u/

Court
Appellate Term, Second Department
Decided
May 26, 2011
Citation
2011 NY Slip Op 50989(U) · 31 Misc 3d 149(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
MVAIC
Legal questions
MVAIC eligibility: qualified covered person (see the maps)
Cite as
Five Boro Psychological Servs., P.C. v MVAIC, 31 Misc 3d 149(A), 2011 NY Slip Op 50989(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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 failure to demonstrate exhaustion of remedies against the known vehicle owner warranted summary judgment for MVAIC. The provider and its assignor knew the identity of the owner of the vehicle alleged to have struck the assignor. The provider therefore had to exhaust remedies against that owner before seeking relief from MVAIC. The Appellate Term, Second Department, reversed the judgment awarding benefits on one bill, vacated the corresponding grant of summary judgment, and denied that branch of the provider's cross motion. Treating the appeal in part as one from the judgment under CPLR 5501 (c), it also reversed the order, insofar as appealed from and separately reviewed, and granted MVAIC summary judgment dismissing the complaint.

Reported in New York Official Reports at Five Boro Psychological Servs., P.C. v MVAIC (2011 NY Slip Op 50989(U))

[*1]
Five Boro Psychological Servs., P.C. v MVAIC
2011 NY Slip Op 50989(U) [31 Misc 3d 149(A)]
Decided on May 26, 2011
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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 26, 2011
SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : WESTON, J.P., GOLIA and RIOS, JJ
2009-1911 K C.

Five Boro Psychological Services, P.C. as Assignee of ERASMO PENA, Respondent,

against

MVAIC, Appellant.


Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 18, 2009. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint and granted the branch of plaintiff’s cross motion seeking summary judgment upon a $1,061.63 bill. The appeal from the order is, in part, deemed to be from a judgment of the same court entered August 13, 2009 awarding plaintiff the principal sum of $1,061.63 (see CPLR 5501 [c]).


ORDERED that the judgment entered August 13, 2009 is reversed, without costs, so much of the order entered June 18, 2009 as granted the branch of plaintiff’s cross motion seeking summary judgment upon a bill for $1,061.63 is vacated and that branch of plaintiff’s cross motion is denied; and it is further,

ORDERED that the order, insofar as appealed from and insofar as separately reviewed, is reversed, without costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

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 so much of an order of the Civil Court as denied its motion for summary judgment dismissing the complaint and granted the branch of plaintiff’s cross motion seeking summary judgment upon a bill for $1,061.63. A judgment was subsequently entered with respect to the bill seeking the principal sum of $1,061.63, from which the appeal is deemed, in part, to be taken (see CPLR 5501 [c]).

Since plaintiff and its assignor were aware of the identity of the owner of the vehicle [*2]which had allegedly struck plaintiff’s assignor, 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]). As plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle which had allegedly struck plaintiff’s assignor, MVAIC’s motion for summary judgment dismissing the complaint should have been granted.

Weston, J.P., Golia and Rios, JJ., concur.
Decision Date: May 26, 2011

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