Ultimate Health Prods., Inc. v MVAIC (2015 NY Slip Op 51446(U))

Reported in New York Official Reports at Ultimate Health Prods., Inc. v MVAIC (2015 NY Slip Op 51446(U))

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered April 15, 2013. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs; and it is further,

ORDERED that, on the court’s own motion, counsel for the respective parties are directed to show cause why an order should or should not be made and entered imposing such sanctions and costs, if any, against plaintiff’s counsel pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1 (c) as this court may deem appropriate, by each filing an affidavit or affirmation on that issue in the office of the clerk of this court and serving one copy of same on each other on or before October 15, 2015; and it is further,

ORDERED that the clerk of this court, or his designee, is directed to serve a copy of this decision and order to show cause by regular mail upon counsel for the respective parties.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted the cross motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint.

Since plaintiff and its assignor were aware of the identity of the owner of the vehicle in which the assignor had been a passenger 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]; 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]). Here, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle.

We conclude that sanctions may be warranted for the conduct of counsel for plaintiff, as that conduct appears to be frivolous (see Gihon, LLC v 501 Second St., LLC, 103 AD3d 840 [2013]; Martin v Burns, 77 AD3d 633, 635 [2010]). As relevant here, frivolous conduct includes the assertion of arguments that are “completely without merit in law and [which] cannot be supported by a reasonable argument for an extension, modification or reversal of existing law” (Rules of the Chief Administrator of the Courts [22 NYCRR] § 130-1.1 [c] [1]), and the [*2]assertion of “material factual statements that are false” in the brief filed by counsel on behalf of plaintiff (Rules of the Chief Administrator of the Courts [22 NYCRR] § 130-1.1 [c] [3]; see Korbel v Zoning Bd. of Appeals of Town of Horicon, 28 AD3d 888, 889-890 [2006]).

Counsel for plaintiff asserts in the appellant’s brief submitted to this court that:

“To the extent Defendant proffered a purported police report, within Exhibit G’ to its motion, same was inadmissible. In particular, the document was not certified. Moreover, Defendant did not proffer an affidavit to set forth a foundation for its admissibility, authenticity or accuracy.”

However, a review of the record reveals that the affirmation of defendant’s counsel states that “A copy of the certified Police Accident Report is annexed hereto as Exhibit G’.” In addition, each page of the police report annexed to defendant’s motion at Exhibit “G” bears a stamp which states “This is to certify that this document is a true and complete copy of a record on,” although the remainder of the sentence does not appear on the photocopy of Exhibit “G” in the record on appeal. Exhibit “G” also contains a stamped signature of Barbara J. Fiala, but her title as Commissioner of Motor Vehicles does not appear on the photocopy of Exhibit “G” in the record on appeal. Moreover, the appellant’s brief further asserts that the transcript of the examination under oath of plaintiff’s assignor did not demonstrate the existence of potential insurance coverage because it was not in admissible form as it was “unsigned and unsworn.” In fact, the transcript states, at the beginning and at the end, directly above the court reporter’s signature, that plaintiff’s assignor was duly sworn by a notary public.

Accordingly, we direct counsel for the respective parties to show cause why sanctions should or should not be imposed against plaintiff’s counsel (see Martin v Burns, 77 AD3d at 635).

In light of the foregoing, the order is affirmed.

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