The following papers were read on Defendant's Motion for SUMMARY JUDGMENT,

Defendant, MVAIC, moves for summary judgment pursuant to CPLR 3212 seeking dismissal of the complaint which seeks $1,616.48 in unpaid medical bills for services rendered to assignor, JOSHUA RIOS, on the grounds that there is no coverage for claimant as claimant has not been deemed a covered person. Defendant, in support of its motion, annexes, inter alia, an affirmation in support; an affidavit of Ron Johnson, a Qualifications Examiner with defendant who attests that defendant has not received proof that the claimant did not have coverage from the offending vehicle's policy; an affidavit authored by Beverly Sheppard who attests to defendant's general business practices and mailing procedures; a police accident report and [*2]denial of claim forms.

Specifically, defendant asserts that plaintiff's claim is procedurally premature. Defendant argues that MVAIC coverage is a remedy of last resort, requiring exhaustion of all available remedies as a precedent to coverage. The injured claimant, Joshua Rios, is a bicyclist who was involved in a motor vehicle accident with a vehicle owned by the United States Postal Service (USPS). Defendant posits that vehicles registered to the USPS are owned by the United States government and are "self-insured" (affirmation of defendant's counsel at 8). Furthermore, defendant claims that Mr. Rios is entitled to seek both economic and non-economic damages from the United States under the Federal Tort Claims Act, 28 U.S.C., Chapter 171, Sections 2671-2680. Defendant avers that plaintiff has failed to provide any proof that there is no coverage available from the offending vehicle such that MVAIC coverage would be triggered.

Plaintiff, in opposition, argues that defendant has failed to conclusively establish that there was no coverage. Plaintiff also cross-moves for summary judgment arguing that they have met their prima facie burden of establishing entitlement to payment. In support of its opposition and cross-motion, plaintiff annexes an affidavit authored by Oliver Tsesis, an office manager for plaintiff who attests that claimant received medical care from plaintiff, plaintiff generated and mailed bills to defendant, and defendant failed to pay; along with proof of said mailing.

Plaintiff contends that the circumstances of Mr. Rios' accident create an exception to the requirement of demonstrating remedy exhaustion. Plaintiff avers that pursuant to case law, no remedy for first party benefits is available for an uninsured pedestrian who is hit by a USPS truck therefore immediately qualifying said pedestrian and their assignees to MVAIC coverage. Plaintiff points to district court case Cooper v. United States, 635 F Supp 1169 (SD NY 1986), which holds that the doctrine of sovereign immunity bars a pedestrian's claim against the United States under New York's no-fault law. As such, plaintiff asserts that since it is well-settled that there is no available no-fault coverage from the United States, it is exempted from demonstrating exhaustion pursuant to obtaining MVAIC coverage.

No opposition to plaintiff's cross-motion has been filed.

Summary judgment is a drastic remedy which a court should employ only when there is no doubt as to the absence of triable issues of fact (Andre v Pomeroy, 35 NY2d 361 [1974]). The proponent of a motion for summary judgment must tender sufficient evidence to show the absence of any material issues of fact and entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; and Winegrad v New York University Medical Center, 64 NY2d 851 [1985]). The party opposing a motion for summary judgment is entitled to all favorable inferences that can be drawn from the evidence submitted and the papers will be scrutinized carefully in a light most favorable to the non-moving party (see Assaf v Ropog Cab Corp., 153 AD2d 520 [1st Dept 1989]). It is well-settled that issue finding, not issue determination, is the key to summary judgment (see Rose v Da Ecib USA, 259 AD2d 258 [1st Dept 1999]). Summary judgment will only be granted if there are no material, triable issues of fact (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]).

If the moving party fails to make such prima facie showing, then the court is required to deny the motion, regardless of the sufficiency of the non-movant's papers (Winegrad v New York Univ. Med. Center, 4 NY2d 851, 853 [1985]). However, if the moving party meets its burden, then the burden shifts to the party opposing the motion to establish by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure to do so (Zuckerman v. City of New York, 49 NY2d 557 [1980]; Jacobsen v. New York [*3]City Health & Hosps. Corp., 22 NY3d at 833; Vega v Restani Construction Corp., 18 NY3d 499, 503 [2012]).

The MVAIC and No-Fault laws, Insurance Law §5201 and §5102 respectively, both serve the public policy goal of protecting persons who have been injured in automobile accidents through no fault of their own. However, the two statutes operate differently and do not share the same exact purpose. New York's No-Fault law is aimed at ensuring prompt compensation for losses incurred by accident victims regardless of fault or negligence, to reduce the burden on the courts (Contact Chiropractic, P.C. v. New York City Transit Auth., 31 NY3d 187 [2018]). In contrast, the goal of the MVAIC law is to provide protection for persons injured by financially irresponsible motorists (Lloyd v. Motor Vehicle Acc. Indemnification Corp., 23 NY2d 478 [1969]). MVAIC coverage is intended for the victims of explicitly stated circumstances who are without recourse to seek recompense for injury and financial loss.

Under New York Insurance Law §5201, MVAIC coverage is intended for persons who, through no fault of their own, were involved in motor vehicle accidents caused by:

"(1) uninsured motor vehicles registered in a state other than New York,

(2) unidentified motor vehicles which leave the scene of the accident,

(3) motor vehicles registered in this state as to which at the time of the accident there was not in effect a policy of liability insurance,

(4) stolen motor vehicles,

(5) motor vehicles operated without the permission of the owner,

(6) insured motor vehicles where the insurer disclaims liability or denies coverage, and

(7) unregistered motor vehicles" (Insurance Law §5201 [b][1-7]).

Pursuant to Insurance Law §5221, MVAIC will also provide no-fault first party benefits for basic economic loss arising out of an accident involving an uninsured motor vehicle. However, with respect to accidents involving a known owner/operator, MVAIC requires those seeking coverage to exhaust their remedies against the known owner and operator of the vehicle before seeking relief from MVAIC (Nakamura v. Motor Vehicle Accident Indemnification Corp., 209 AD3d 535 [1st Dep 2022]).

In the instant action, the owner and operator of the offending vehicle is known. Thus, plaintiff is required to exhaust all remedies before they are entitled to file a claim seeking MVAIC benefits. A person who has been injured in an accident with a USPS truck may file a claim with the appropriate federal administrative agency. If that agency were to deny said claim, then the injured person would be entitled to bring a tort action against the United States for damages (see 28 U.S.C.A. § 2675). Here, plaintiff has failed to demonstrate whether the injured claimant, Mr. Rios, has availed himself of this administrative process prior to seeking MVAIC coverage.

Plaintiff, in its opposition, argues that when the relevant MVAIC and No-Fault provisions are read together one can infer that when no-fault coverage is not available from the known offender, such as is the case here, the injured claimant need not file a futile claim to be eligible for MVAIC coverage.

Unfortunately, this argument, while persuasive, is belied by MVAIC the statute. MVAIC [*4]may have been created to fill a gap left by the No-Fault law, and may mimic no-fault benefits ^[FN1] , but the MVAIC statute establishes independent conditions precedent to coverage. Therefore, plaintiff's inability to receive no-fault benefits from the United States does not give rise to an axiomatic qualification for MVAIC coverage or a justification for overlooking MVAIC's procedural requirements.

MVAIC is strictly a remedy of last resort. Although Mr. Rios cannot specifically seek no-fault benefits from the United States, a pedestrian hit by a USPS truck may seek reimbursement for basic economic loss, such as medical expenses, through an administrative claim and subsequent tort action (Cooper v. United States, 635 F Supp 1169 [SD NY 1986]). Therefore, while Mr. Rios and his assignees may have no pathway to no-fault first party benefits, he is not without remedy for recompense. Mr. Rios may file a claim with the proper administrative agency. If same were to be denied, Mr. Rios would be eligible to seek MVAIC coverage as a victim of a motor vehicle accident where the insurer of the offending vehicle disclaims liability or denies coverage (Insurance Law §5208 [3][A]). The record is devoid of proof of USPS's or the appropriate administrative agency's denial of coverage. Consequently, plaintiff's claim against defendant is premature and defendant's denial of coverage in this instance is justified.

All remaining arguments have been considered and are either without merit or need not be addressed given the findings above. Accordingly, it is hereby

ORDERED that, defendant's motion for summary judgment is granted; and it is further

ORDERED that, plaintiff's cross motion for summary judgment is denied; and it further

ORDERED that, this matter is dismissed without prejudice

This constitutes the decision and order of the court.