Omega Diagnostic Imaging, P.C. v MVAIC (2010 NY Slip Op 51779(U))

Reported in New York Official Reports at Omega Diagnostic Imaging, P.C. v MVAIC (2010 NY Slip Op 51779(U))

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), dated March 12, 2009, which denied its cross motion for summary judgment dismissing the complaint and granted plaintiff’s motion for summary judgment in the principal sum of $879.73.

Per Curiam.

Order (Raul Cruz, J.), dated March 12, 2009, affirmed, without costs.

Plaintiff established its prima facie entitlement to judgment as a matter of law on its claim to recover assigned first-party no-fault benefits (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004], lv denied 4 NY3d 705 [2005]). In opposition, defendant (MVAIC) failed to demonstrate any basis to dismiss the complaint or raise a triable issue. Defendant’s contention that the action is premature because plaintiff failed to establish that it qualified for MVAIC coverage is without merit (see New York Hosp. Med. Ctr. of Queens, supra; see also Motor Veh. Acc. Indem. Corp. v Interboro Med. Care & Diagnostic, PC, 73 AD3d 667 [2010]).

Nor is the action premature on the ground that there is an outstanding verification request. Defendant served on plaintiff and its assignor requests that they obtain from the out-of-state driver of the vehicle that struck the assignor an “affidavit of no insurance.” The requests, however, were not proper, since there was no “good reason” for defendant to demand that plaintiff and its assignor obtain an affidavit from the driver, who is neither a party to this action nor under the control of either plaintiff or its assignor (see 11 NYCRR 65-3.2[c]).

Similarly without merit is defendant’s contention that the action should be dismissed because plaintiff failed to establish that it “exhausted its remedies” before seeking payment of first-party benefits from defendant. On this record, defendant failed to establish the applicability of such a requirement (see generally Motor Veh. Acc. Indem. Corp. v Interboro Med. Care & Diagnostic, PC, supra; New York Hosp. Med. Ctr. of Queens, supra; cf. Hauswirth v American [*2]Home Assur. Co., 244 AD2d 528 [1997]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concur
Decision Date: October 15, 2010