Five Boro Psychological Servs., P.C. v MVAIC (2010 NY Slip Op 50641(U))

Five Boro Psychological Servs., P.C. v MVAIC

2010 NY Slip Op 50641(U) [27 Misc 3d 130(A)]

Decided on April 8, 2010

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This opinion is uncorrected and will not be published in the printed Official Reports.

Five Boro Psychological Services, P.C., a/a/o JUAN ALMONTE, Appellant,

against

MVAIC, Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered September 26, 2008. The order conditionally granted defendant's motion for summary judgment dismissing the complaint.

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 on the ground that there was no coverage because no proof had been provided establishing that all insurance remedies against the owners of the vehicles had been exhausted. Plaintiff opposed the motion. The Civil Court granted MVAIC's motion for summary judgment unless plaintiff filed proof that there is a lack of insurance within 60 days. This appeal by plaintiff ensued.

Since plaintiff and its assignor were aware of the identity of the owner of the vehicle that 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]; 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 Dists 2008]). As a result, plaintiff's contention that the order appealed from placed an improper burden on plaintiff lacks merit. Accordingly, the order is affirmed.