Doctor Liliya Med., P.C. v MVAIC (2008 NY Slip Op 52453(U))

Doctor Liliya Med., P.C. v MVAIC

2008 NY Slip Op 52453(U) [21 Misc 3d 143(A)]

Decided on December 3, 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This opinion is uncorrected and will not be published in the printed Official Reports.

Doctor Liliya Medical, P.C. a/a/o HARRY KIRT, Respondent,

against

MVAIC, Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Margaret A. Pui Yee Chan, J.), entered September 7, 2007. The order denied defendant's motion to dismiss the complaint.

Order reversed without costs and defendant's motion to dismiss the complaint 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) moved to dismiss the complaint on the ground that plaintiff failed to state a cause of action (CPLR 3211 [a] [7]). MVAIC argued, inter alia, that the action was premature since plaintiff failed to demonstrate that all available remedies against the owner of the vehicle in which plaintiff's assignor was a passenger were exhausted before relief was sought from MVAIC. The court below denied MVAIC's motion, and this appeal ensued.

The Appellate Division, Second Department, has stated that, in reviewing a motion to dismiss a complaint for failure to state a cause of action, a court must "determine whether the proponent of the pleading has a cause of action, not whether [it] has stated one" (Meyer v Guinta, 262 AD2d 463, 464 [1999]; see also Parsippany Constr. Co., Inc. v Clark Patterson Assoc., P.C., 41 AD3d 805, 806 [2007]). Since plaintiff and its assignor are aware of the identities of the driver and owner of the vehicle in which plaintiff's assignor was a passenger at the time of the accident, plaintiff, as assignee, must first exhaust its remedies against the vehicle's driver and owner before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1977]; Complete Med. Servs. of N.Y., P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U] [App Term, 2d & 11th Jud Dists 2008]). Until plaintiff exhausts its remedies, its claim against MVAIC is premature (Hauswirth, 244 AD2d 528). [*2]
Accordingly, MVAIC's motion to dismiss the complaint should have been granted. We note that if plaintiff exhausts its remedies against those parties, plaintiff may then assert a claim against MVAIC.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: December 03, 2008