Opinion
2017-281 Q C
07-12-2019
PROMED DURABLE EQUIPMENT, INC., as Assignee of Shaerah Harkless, Respondent, v. MVAIC, Appellant.
Marshall & Marshall, PLLC (Barbara Carabell of counsel), for appellant. Law Office of Emilia I. Rutigliano, P.C., for respondent (no brief filed).
Marshall & Marshall, PLLC (Barbara Carabell of counsel), for appellant.
Law Office of Emilia I. Rutigliano, P.C., for respondent (no brief filed).
PRESENT: MICHAEL L. PESCE, P.J., MICHELLE WESTON, THOMAS P. ALIOTTA, JJ
ORDERED that so much of the appeal as is from the decision is dismissed, as no appeal lies therefrom (see CCA 1702 ); and it is further,
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.
After a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the Civil Court awarded judgment to plaintiff in the principal sum of $2,655.
The evidence adduced at trial was insufficient to establish that plaintiff had exhausted its remedies against the vehicle's owner (see Matter of Acosta-Collado v Motor Veh. Acc. Indem. Corp. , 103 AD3d 714 [2013] ; Hauswirth v American Home Assur. Co. , 244 AD2d 528 [1997] ). As a result, plaintiff's claim is premature (see Matter of Acosta-Collado , 103 AD3d 714 ; Hauswirth , 244 AD2d 528 ; Dr. Abakin, D.C., P.C. v MVAIC , 21 Misc 3d 134[A], 2008 NY Slip Op 52186[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; see also Matter of Sweet v Motor Veh. Acc. Indem. Corp. , 287 AD2d 510 [2001] ; Matter of Troches v Motor Veh. Acc. Indem. Corp. , 171 AD2d 873 [1991] ).
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.