Opinion
No. 2012–913 KC.
2014-05-29
YKLIK, INC. as Assignee of Cecil Harriott, Respondent, v. MVAIC, Appellant.
Present: PESCE, P.J., ALIOTTA and SOLOMON, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered January 9, 2012. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, with $30 costs, plaintiff's motion for summary judgment is denied and defendant's cross 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 MVAIC)
appeals from an order of the Civil Court which granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.
Since plaintiff and its assignor were aware of the identity of the owner of the vehicle which the assignor had been driving at the time of the accident, plaintiff, as assignee, was required to exhaust its remedies against the vehicle's owner before seeking relief from MVAIC ( Hauswirth v. American Home Assur. Co., 244 A.D.2d 528 [1997]; Modern Art Med., P.C. v. MVAIC, 22 Misc.3d 126[A], 2008 N.Y. Slip Op 52586[U] [App Term, 2d & 11th Jud Dists 2008]; Doctor Liliya Med., P.C. v. MVAIC, 21 Misc.3d 143[A], 2008 N.Y. Slip Op 52453[U] [App Term, 2d & 11th Jud Dists 2008]; Dr. Abakin, D.C., P.C. v. MVAIC, 21 Misc.3d 134[A], 2008 N.Y. Slip Op 52186[U] [App Term, 2d & 11th Jud Dists 2008]; Complete Med. Servs. of NY, P.C. v. MVAIC, 20 Misc.3d 137[A], 2008 N.Y. Slip Op 51541[U] [App Term, 2d & 11th Jud Dists 2008]; see also BLR Chiropractic, P .C. v. MVAIC, 36 Misc.3d 129[A], 2011 N.Y. Slip Op 52517 [U] [App Term, 2d, 11th & 13th Jud Dists 2011]; BLR Chiropractic, P.C. v. MVAIC, 33 Misc.3d 131[A], 2011 N.Y. Slip Op 51878[U] [App Term, 2d, 11th & 13th Jud Dists 2011] ). As plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle, the order is reversed, plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted.