| Atlantic Chiropractic, P.C. v MVAIC |
| 2019 NY Slip Op 51374(U) [64 Misc 3d 148(A)] |
| Decided on July 12, 2019 |
| 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Marshall & Marshall, PLLC (Barbara Carabell of counsel), for appellant. Zara Javakov, P.C. (Zara Javakov, Esq.), for respondent (no brief filed).
Appeal from a judgment of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered December 21, 2016. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,800.
ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant 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) appeals from a judgment of the Civil Court which, after a nonjury trial, awarded plaintiff the principal sum of $1,800.
Since plaintiff's assignor was aware of the identity of the owner of the vehicle which struck plaintiff's assignor, plaintiff, as assignee, was required to exhaust its remedies against the vehicle's owner before seeking relief from MVAIC (see Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Compas Med., P.C. v MVAIC, 42 Misc 3d 150[A], 2014 NY Slip Op 50414[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]). Here, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle (see BLR [*2]Chiropractic, P.C. v MVAIC, 33 Misc 3d 131[A], 2011 NY Slip Op 51878[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see also BLR Chiropractic, P.C. v MVAIC, 36 Misc 3d 129[A], 2011 NY Slip Op 52517[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).
Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.