Complete Med. Servs. of N.Y., P.C. v MVAIC (2008 NY Slip Op 51541(U))

Complete Med. Servs. of N.Y., P.C. v MVAIC

2008 NY Slip Op 51541(U) [20 Misc 3d 137(A)]

Decided on July 10, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.

Complete Medical Services of N.Y., P.C. as assignee of TIEYASHA McVAY, Respondent,

against

MVAIC, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered February 13, 2007. The order, insofar as appealed from, denied defendant's cross motion for summary judgment.

Order, insofar as appealed from, reversed without costs and defendant's cross motion for summary judgment dismissing the complaint granted.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) cross-moved for summary
judgment dismissing the complaint. MVAIC argued, inter alia, that the action was premature since plaintiff and its assignor failed to exhaust all remedies against the driver and the owner of the taxicab which struck plaintiff's assignor before seeking relief from MVAIC. MVAIC also asserted that the action was premature since plaintiff's assignor failed to provide sufficient information so that MVAIC could determine whether she was a qualified person. The court held that plaintiff failed to make a prima facie showing of its entitlement to summary judgment and that MVAIC's cross motion for summary judgment based upon the assignor's lack of qualification lacked merit. This appeal by defendant ensued.

Since plaintiff and its assignor are aware of the identities of the driver and the owner of the taxicab which struck plaintiff's assignor, plaintiff, as assignee, must first exhaust its remedies [*2]against the driver and the owner of the taxicab before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]). If plaintiff unsuccessfully exhausts its remedies against the driver and the owner of
the taxicab, plaintiff may assert a claim against MVAIC pursuant to Insurance Law
§ 5218 (c). However, until plaintiff exhausts its remedies, its claim against MVAIC is premature (id.). Consequently, MVAIC's cross motion for summary judgment should have been granted.