B.Y., M.D., P.C. v Motor Veh. Acc. Indem. Corp. (2011 NY Slip Op 50984(U))

B.Y., M.D., P.C. v Motor Veh. Acc. Indem. Corp.

2011 NY Slip Op 50984(U) [31 Misc 3d 148(A)]

Decided on May 24, 2011

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This opinion is uncorrected and will not be published in the printed Official Reports.

B.Y., M.D., P.C. JR CHIROPRACTIC, P.C. and OLGA BARD ACUPUNCTURE, P.C. as Assignees of LEONARDO RODRIGUES, Appellants,

against

Motor Vehicle Accident Indemnification Corp., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered February 1, 2010. The order, insofar as appealed from, denied plaintiffs' cross motion for summary judgment.

ORDERED that the order, insofar as appealed from, is affirmed, without costs, and, upon searching the record, defendant's motion for summary judgment dismissing the complaint is granted.

In this action by providers to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corp. (MVAIC) moved for summary judgment dismissing the complaint on the ground that, among other things, there was no coverage because no proof had been provided establishing that all insurance remedies against the owner of the vehicle had been exhausted. Plaintiffs cross-moved for summary judgment. The Civil Court denied both motions. Plaintiffs appeal from so much of the order as denied their cross motion for summary judgment, and MVAIC requests that, upon a search of the record, its motion for summary judgment be granted.

Since plaintiffs and their assignor were aware of the identity of the owner of the vehicle that struck plaintiffs' assignor, plaintiffs, as assignees, were required to exhaust their 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 [*2]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]). Since plaintiffs did not demonstrate that they had exhausted their remedies against the owner of the vehicle which had allegedly struck
plaintiffs' assignor, plaintiffs' cross motion for summary judgment was properly denied. In light of the foregoing, we search the record and grant MVAIC's motion for summary judgment dismissing the complaint (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]).