April 25, 2012

Parsons Med. Supply, Inc. v MVAIC (2012 NY Slip Op 50750(U))

Headnote

A provider sued MVAIC for assigned first-party no-fault benefits, and the Civil Court denied MVAIC's motion for summary judgment. The assignor was allegedly injured while riding as a passenger in an ambulette. The Appellate Term held that the plaintiff, as assignee, was therefore required to exhaust its remedies against the vehicle's owner before seeking relief from MVAIC, and it had not shown that it did so. The order was reversed and MVAIC's motion for summary judgment dismissing the complaint was granted.

Reported in New York Official Reports at Parsons Med. Supply, Inc. v MVAIC (2012 NY Slip Op 50750(U))

[*1]
Parsons Med. Supply, Inc. v MVAIC
2012 NY Slip Op 50750(U) [35 Misc 3d 133(A)]
Decided on April 25, 2012
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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 25, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., RIOS and ALIOTTA, JJ
.

Parsons Medical Supply, Inc. as Assignee of BORIS SHNITMAN, Respondent, —

against

MVAIC, Appellant.


Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered March 10, 2010. The order denied defendant’s motion for summary judgment dismissing the complaint.


ORDERED that the order 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 an order which denied its motion for summary judgment dismissing the complaint.

Since plaintiff’s assignor was allegedly injured while riding as a passenger in an ambulette, 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 (see e.g. Matter of Progressive Northeastern Ins. Co. v Barnes, 30 AD3d 523 [2006]; Matter of AIU Ins. Co. v Marciante, 8 AD3d 266 [2004]), the order of the Civil Court is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Rios and Aliotta, JJ., concur.
Decision Date: April 25, 2012