| Delta Diagnostic Radiology, P.C. v MVAIC |
| 2015 NY Slip Op 50385(U) [47 Misc 3d 130(A)] |
| Decided on March 12, 2015 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered July 19, 2012. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,486.01.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the complaint.
In this action by a provider to recover assigned first-party no-fault benefits, the only issues to be decided at the trial were whether plaintiff's assignor was a covered person and whether the assignor was eligible to receive first-party no-fault benefits pursuant to an insurance policy.
At the nonjury trial, the assignor's notice of intention to make claim form was admitted into evidence and the sole witness was an employee of defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC).
Since plaintiff and its assignor had sufficient information to identify the owner of the Pennsylvania vehicle in which plaintiff's assignor was 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]; 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]; see also Compas Med., P.C. v MVAIC, 42 Misc 3d 150[A], 2014 NY Slip Op 50414[U] [App Term, 2d, 11th & 13th Jud Dists 2014]). Here, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle.
We pass on no other issue.
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of judgment in favor of defendant dismissing the complaint.
Pesce, P.J., Aliotta and Solomon, JJ., concur.