Island Surgical Supply Co., Inc. v MVAIC (2008 NY Slip Op 51860(U))

Island Surgical Supply Co., Inc. v MVAIC

2008 NY Slip Op 51860(U) [20 Misc 3d 144(A)]

Decided on September 2, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.

Island Surgical Supply Co., Inc. as assignee of Maria Jimenez, Respondent,

against

MVAIC, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Lee A. Mayersohn, J.), entered May 9, 2007. The order denied defendant's motion for summary judgment dismissing the complaint and granted plaintiff's cross motion for summary judgment.

Order reversed without costs, defendant's motion for summary judgment dismissing the complaint granted and plaintiff's cross motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the complaint, arguing, inter alia, that the action was premature since plaintiff and its assignor failed to exhaust all remedies against the owner of the vehicle that plaintiff's assignor was driving before seeking relief
from MVAIC. MVAIC also asserted that the action was premature since plaintiff's assignor failed to provide sufficient information so that MVAIC could determine whether she was a qualified person. Plaintiff cross-moved for summary judgment. The court granted plaintiff's cross motion for summary judgment, rejecting MVAIC's argument that plaintiff's assignor was not a "qualified person." This appeal by defendant ensued.

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]; 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]). If plaintiff unsuccessfully exhausts its remedies against the owner of the vehicle, plaintiff may assert a claim against MVAIC. [*2]
However, until plaintiff exhausts its remedies, its claim against MVAIC is premature (id.). Consequently, MVAIC's motion for summary judgment should have been granted and plaintiff's cross motion denied.

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 02, 2008