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B.Y., M.D., P.C. v Motor Veh. Acc. Indem. Corp.
2016 NY Slip Op 51626(U) [53 Misc 3d 148(A)]
Decided on November 1, 2016
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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on November 1, 2016
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., ALIOTTA and SOLOMON, JJ.
2014-1231 K C

B.Y., M.D., P.C., CITY CARE ACUPUNCTURE, P.C., MK CHIROPRACTIC, P.C., OASIS PHYSICAL THERAPY, P.C. and PARKWAY MEDICAL CARE, P.C., as Assignees of RASHAAD RICE and JAMES THOMPSON, Appellants,

against

Motor Vehicle Accident Indemnification Corp., Respondent.


Appeal from an order of the Civil Court of the City of New York, Kings County (Harriet L. Thompson, J.), entered April 9, 2014. The order denied plaintiffs' motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs appeal from an order of the Civil Court which denied plaintiffs' motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint.

Contrary to plaintiffs' contention, since plaintiffs and their assignors were aware of the identity of the owner of the vehicle in which the assignors had been passengers at the time of the accident, plaintiffs, as assignees, were required to exhaust their remedies against the vehicle's owner before seeking relief from defendant (see 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 Dept, 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 Dept, 2d & 11th Jud Dists 2008]). Here, plaintiffs did not demonstrate that they had exhausted their remedies against the owner of the vehicle. Plaintiffs' remaining contention lacks merit.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.


Decision Date: November 01, 2016