| Queens Med. Supply, Inc. v MVAIC |
| 2015 NY Slip Op 50775(U) [47 Misc 3d 149(A)] |
| Decided on May 18, 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| This opinion is uncorrected and will not be published in the printed Official Reports.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 (Patricia Anne Williams, J.), entered April 23, 2012. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $2,001.75 upon a claim for supplies furnished to assignor Jean Prophete.
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 insofar as it seeks to recover upon a claim for supplies furnished to assignor Jean Prophete.
At a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, a sworn notice of intention to make claim form executed by assignor Jean Prophete was admitted into evidence, in which she identified the vehicle which struck her. Following the trial, the Civil Court dismissed the complaint insofar as it related to assignor Jeanienne Ramdoo and awarded a separate judgment in favor of plaintiff in the principal sum of $2,001.75 with respect to its claim relating to supplies furnished to Jean Prophete, from which judgment defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals.
Since plaintiff and its assignor, Jean Prophete, were aware of the identity of the owner of the vehicle which had struck her, plaintiff, as assignee, was required to exhaust its remedies against the vehicle's owner before seeking relief from defendant (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.
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 insofar as it seeks to recover upon a claim for supplies furnished to assignor Jean Prophete.
Pesce, P.J., Aliotta and Solomon, JJ., concur.