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October 5, 2016

Gerik Acupuncture, P.C. v MVAIC (2016 NY Slip Op 51445(U))

https://www.beynensonlaw.com/case-law/gerik-acupuncture-p-c-v-mvaic-2016-ny-slip-op-51445u/

Court
Appellate Term, Second Department
Decided
October 5, 2016
Citation
2016 NY Slip Op 51445(U) · 53 Misc 3d 136(A)
Posture
Summary judgment
Outcome
Insurer prevailed
Issues
MVAIC
Legal questions
MVAIC eligibility: qualified covered person (see the maps)
Cite as
Gerik Acupuncture, P.C. v MVAIC, 53 Misc 3d 136(A), 2016 NY Slip Op 51445(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016)

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 failed to show exhaustion of remedies against the known vehicle owner before seeking no-fault benefits from MVAIC. MVAIC submitted the assignor's sworn notice-of-intention form identifying the owner of the vehicle in which the assignor had been riding and providing an insurance policy number. Because the provider and assignor knew the owner's identity, exhaustion was required under Hauswirth v American Home Assur. Co. The provider did not demonstrate exhaustion. The Appellate Term, Second Department, reversed the order, insofar as appealed from, and granted MVAIC's motion for summary judgment dismissing the complaint.

Reported in New York Official Reports at Gerik Acupuncture, P.C. v MVAIC (2016 NY Slip Op 51445(U))

[*1]
Gerik Acupuncture, P.C. v MVAIC
2016 NY Slip Op 51445(U) [53 Misc 3d 136(A)]
Decided on October 5, 2016
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This opinion is uncorrected and will not be published in the printed Official Reports.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 October 5, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-1088 K C

Gerik Acupuncture, P.C., as Assignee of TANYA BATTLE, Respondent,

against

MVAIC, Appellant.


Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered January 24, 2014. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed, with $30 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 defendant’s motion for summary judgment dismissing the complaint.

Annexed as an exhibit to MVAIC’s motion for summary judgment was a sworn notice of intention to make claim form in which plaintiff’s assignor identified the owner of the vehicle in which she had been riding when the accident had occurred, and provided an insurance policy number for the vehicle. Since plaintiff and its assignor were aware of the identity of the owner of the vehicle in which plaintiff’s assignor was a passenger, plaintiff, as assignee, was required to exhaust its remedies against the vehicle’s owner before seeking relief from MVAIC (see 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 Dept, 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 Dept, 2d & 11th Jud Dists 2008]). Here, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle.

Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.


Decision Date: October 05, 2016

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 that, since the assignor's sworn notice named the vehicle owner and gave a policy number, the provider had to exhaust remedies against that owner, and dismissed because exhaustion was not demonstrated.

  • Appellate DivisionApp Div 3
  • Appellate TermApp Term 192
  • Trial courtsTrial 28
2004, Appellate Division: 1 decision (1 Defense precluded/waived)2011, Appellate Division: 2 decisions (2 MVAIC failed to prove)2019, Appellate Term: 23 decisions (10 Found not eligible, 11 Claimant's proof lacking, 2 Defense precluded/waived)2025, Appellate Term: 5 decisions (2 Found not eligible, 1 Claimant's proof lacking, 2 MVAIC failed to prove)2026, Appellate Term: 5 decisions (3 Found not eligible, 2 MVAIC failed to prove)2005, Appellate Term: 2 decisions (1 Found not eligible, 1 Defense precluded/waived)2006, Appellate Term: 1 decision (1 Found not eligible)2007, Appellate Term: 4 decisions (1 Found not eligible, 1 MVAIC failed to prove, 2 Defense precluded/waived)2008, Appellate Term: 11 decisions (6 Claimant's proof lacking, 3 MVAIC failed to prove, 1 Unresolved / for trial, 1 Defense precluded/waived)2009, Appellate Term: 4 decisions (3 Found not eligible, 1 MVAIC failed to prove)2010, Appellate Term: 8 decisions (3 Found not eligible, 5 Claimant's proof lacking)2011, Appellate Term: 16 decisions (1 Found not eligible, 11 Claimant's proof lacking, 2 MVAIC failed to prove, 1 Found eligible, 1 Unresolved / for trial)2012, Appellate Term: 26 decisions (10 Found not eligible, 10 Claimant's proof lacking, 4 MVAIC failed to prove, 2 Unresolved / for trial)2013, Appellate Term: 9 decisions (2 Found not eligible, 6 Claimant's proof lacking, 1 Unresolved / for trial)2014, Appellate Term: 14 decisions (1 Found not eligible, 9 Claimant's proof lacking, 2 Found eligible, 1 Unresolved / for trial, 1 Defense precluded/waived)2015, Appellate Term: 13 decisions (2 Found not eligible, 10 Claimant's proof lacking, 1 MVAIC failed to prove)2016, Appellate Term: 15 decisions (2 Found not eligible, 10 Claimant's proof lacking, 2 Unresolved / for trial, 1 Defense precluded/waived)2017, Appellate Term: 17 decisions (8 Found not eligible, 9 Claimant's proof lacking)2018, Appellate Term: 5 decisions (1 Found not eligible, 4 Claimant's proof lacking)2020, Appellate Term: 1 decision (1 Claimant's proof lacking)2021, Appellate Term: 3 decisions (1 Found not eligible, 2 Defense precluded/waived)2022, Appellate Term: 7 decisions (4 Found not eligible, 2 Claimant's proof lacking, 1 Defense precluded/waived)2023, Appellate Term: 1 decision (1 Unresolved / for trial)2024, Appellate Term: 2 decisions (1 Found not eligible, 1 MVAIC failed to prove)2006, Trial courts: 5 decisions (2 Found not eligible, 2 Claimant's proof lacking, 1 Defense precluded/waived)2026, Trial courts: 2 decisions (2 Found not eligible)2004, Trial courts: 1 decision (1 Found eligible)2007, Trial courts: 2 decisions (1 Found not eligible, 1 Unresolved / for trial)2009, Trial courts: 2 decisions (1 MVAIC failed to prove, 1 Unresolved / for trial)2011, Trial courts: 1 decision (1 Found eligible)2012, Trial courts: 3 decisions (1 MVAIC failed to prove, 1 Unresolved / for trial, 1 Defense precluded/waived)2013, Trial courts: 1 decision (1 Found not eligible)2015, Trial courts: 1 decision (1 Found not eligible)2018, Trial courts: 1 decision (1 Found not eligible)2019, Trial courts: 3 decisions (1 Found not eligible, 1 Claimant's proof lacking, 1 Defense precluded/waived)2020, Trial courts: 1 decision (1 Defense precluded/waived)2021, Trial courts: 3 decisions (1 Found not eligible, 2 MVAIC failed to prove)2022, Trial courts: 1 decision (1 Claimant's proof lacking)2024, Trial courts: 1 decision (1 Unresolved / for trial)This decision
20052010201520202025
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

  • Modern Art Med., P.C. v MVAIC (2008 NY Slip Op 52586(U))The 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))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.

Similar decisions

  • GAO Acupuncture, P.C. v MVAIC (2025 NY Slip Op 51173(U))A passenger's assignee must exhaust remedies against a known vehicle owner before seeking benefits from MVAIC. The provider sought assigned first-party no-fault benefits from MVAIC for an assignor who was a passenger and knew the vehicle owner's identity.
  • Healing Art Acupuncture, P.C. v MVAIC (2014 NY Slip Op 50422(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 sued for assigned first-party no-fault benefits, and the Civil Court denied MVAIC's motion for summary judgment dismissing the complaint.
  • 3 Star Acupuncture, P.C. v MVAIC (2012 NY Slip Op 51708(U))A provider and assignor who know the vehicle owner's identity must exhaust remedies against that owner before seeking payment from MVAIC. The provider and its assignor knew the identity of the owner of the vehicle in which the assignor had been a passenger.
  • East Gun Hill Med., P.C. v MVAIC (2014 NY Slip Op 50965(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 assignor knew the identity of the owner of the vehicle in which the assignor was a passenger when the accident occurred.
  • 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.
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