Opinion
2017-1762 K C
07-19-2019
NEW MILLENNIUM MEDICAL IMAGING, P.C., as Assignee of Francisco Cruz, Respondent, v. M.V.A.I.C., Appellant.
Marshall & Marshall, PLLC (Tracy Bader Pollack of counsel), for appellant. Law Office of Damin J. Toell, P.C. (Damin J. Toell of counsel), for respondent.
Marshall & Marshall, PLLC (Tracy Bader Pollack of counsel), for appellant.
Law Office of Damin J. Toell, P.C. (Damin J. Toell of counsel), for respondent.
PRESENT: MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ.
ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is granted.
In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as M.V.A.I.C.) appeals from so much of an order of the Civil Court as denied defendant's motion for summary judgment dismissing the complaint.
Since plaintiff's assignor was aware of the identity of the owner of the vehicle which struck plaintiff's assignor at the time of the accident, plaintiff, as assignee, was required to exhaust its remedies against the vehicle's owner before seeking relief from defendant (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 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 order, insofar as appealed from, is reversed, and defendant's motion for summary judgment dismissing the complaint is granted.
PESCE, P.J., WESTON and ALIOTTA, JJ., concur.