December 31, 2008

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

https://www.beynensonlaw.com/case-law/modern-art-med-p-c-v-mvaic-2008-ny-slip-op-52586u/

Court: Appellate Term, Second Department
Decided: December 31, 2008
Citation: 2008 NY Slip Op 52586(U) · 22 Misc 3d 126(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Contrasted (cf., but see) in 1 and followed in 39 later decisions (see Cited by)
Issues: MVAIC
Legal questions: MVAIC eligibility: qualified covered person (see the maps)

Cite as

Modern Art Med., P.C. v MVAIC, 22 Misc 3d 126(A), 2008 NY Slip Op 52586(U) (App Term, 2d Dept, 2d, 11th & 13th 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 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. Applying Hauswirth v American Home Assur. Co., the Appellate Term, Second Department, concluded that the provider had not demonstrated exhaustion of remedies against the owner of the vehicle allegedly striking the assignor. The court reversed the judgment, vacated the underlying order, and denied the provider's motion for summary judgment, reaching no other issue.

Reported in New York Official Reports at Modern Art Med., P.C. v MVAIC (2008 NY Slip Op 52586(U))

[*1]

Modern Art Med., P.C. v MVAIC

2008 NY Slip Op 52586(U) [22 Misc 3d 126(A)]

Decided on December 31, 2008

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

As corrected in part through February 24, 2009; it will not be published in the printed Official Reports.

Decided on December 31, 2008

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., GOLIA and RIOS, JJ
2007-1519 Q C.

Modern Art Medical, P.C. a/a/o ESPIRIDION MEJIA, Respondent,

against

MVAIC, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered August 16, 2007, deemed from a judgment of said court entered September 18, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 16, 2007 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $580.06.

Judgment reversed without costs, order entered August 16, 2007 vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) argued, inter alia, that plaintiff was not entitled to summary judgment because plaintiff’s assignor failed to exhaust all
remedies against the owner of the vehicle which allegedly struck him before seeking no-fault benefits from MVAIC. The court granted plaintiff’s motion for summary judgment. This appeal by MVAIC ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

Since plaintiff and its assignor were 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, 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]; 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 N.Y., P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U] [App Term, 2d & 11th Dists 2008]). Accordingly, since plaintiff did not demonstrate that it exhausted its remedies against the owner of the vehicle which allegedly struck plaintiff’s [*2]assignor, plaintiff’s motion for summary judgment should have been denied.

In light of the foregoing, we reach no other issue.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: December 31, 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 provider not entitled to summary judgment because it knew the vehicle owner's identity and did not demonstrate that it had exhausted its remedies against that owner before seeking benefits from MVAIC.

Found not eligibleClaimant's proof lackingMVAIC failed to proveFound eligibleUnresolved / for trialDefense precluded/waivedThis decisionCites it or cited by itCited or followedDistinguished or limited

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.

Dr. Abakin, D.C., P.C. v MVAIC (2008 NY Slip Op 52186(U)) FollowedThe provider's claim against MVAIC was premature because remedies against the known driver and owner had not been exhausted.
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 (59)

A label shows how the later decision treated this one.

Compas Med., P.C. v MVAIC (2016 NY Slip Op 51355(U)) Contrasted (cf., but see)MVAIC's own submissions raised a factual issue about whether the assignor had other no-fault coverage that had to be exhausted.
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.
Ap Orthopedic & Rehabilitation, P.C. v Mvaic (2011 NY Slip Op 51448(U)) FollowedThe 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.
Orlin & Cohen Orthopedic Assoc. v Motor Veh. Acc. Indem. Corp. (2017 NY Slip Op 51778(U)) FollowedThe provider failed at trial to prove exhaustion of remedies against potential insurers despite knowing the driver's identity.
Tam Med. Supply Corp. v MVAIC (2017 NY Slip Op 51894(U)) FollowedThe provider failed to show that it exhausted remedies against the known vehicle owner before seeking payment from MVAIC. In this action for assigned first-party no-fault benefits, both the provider and its assignor knew the identity of the owner of the vehicle that struck the assignor.
Yklik, Inc. v MVAIC (2012 NY Slip Op 51012(U)) FollowedThe provider's claims against MVAIC failed for lack of a timely sworn notice of claim and failure to exhaust 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.
Chapa Prods. Corp. v MVAIC (2017 NY Slip Op 51775(U)) FollowedThe provider failed to demonstrate exhaustion of remedies against the known vehicle's owner before seeking benefits from MVAIC. Both the provider and its assignor knew the identity of the vehicle that struck the assignor.
Compas Med., P.C. v MVAIC (2017 NY Slip Op 51467(U)) FollowedThe 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.
BES Med. Supply, Inc. v MVAIC (2016 NY Slip Op 51427(U)) FollowedA provider must exhaust remedies against the known owner of the striking vehicle before seeking benefits from MVAIC. The provider and assignor knew the identity of the owner of the vehicle that struck the vehicle in which the assignor was a passenger.

Show all 59 citing decisions