Chapa Prods. Corp.v.Mvaic

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTSDec 15, 2017
92 N.Y.S.3d 702 (N.Y. App. Div. 2017)
92 N.Y.S.3d 70258 Misc. 3d 1322017 N.Y. Slip Op. 51775

2014–2802 Q C

12-15-2017

CHAPA PRODUCTS CORP., as Assignee of Barbara Charles, Respondent, v. MVAIC, Appellant.

Marshall & Marshall, PLLC (Naim M. Peress, Esq.), for appellant. The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent.


Marshall & Marshall, PLLC (Naim M. Peress, Esq.), for appellant.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent.

PRESENT: MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ.

ORDERED that the order 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 MVAIC) appeals from an order of the Civil Court which denied defendant's motion for summary judgment dismissing the complaint.

Since plaintiff and its assignor were aware of the identity of the vehicle which had 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] ; 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, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle.

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.