HEALTHWAY MEDICAL CARE v. MVAIC (2019)

ORDERED that, on the court's own motion, the notice of appeal from the decision dated July 12, 2016 is deemed a premature notice of appeal from the judgment entered July 27, 2016 (see CPLR 5520 [c]); and it is further,

ORDERED that the judgment is reversed, with $ 30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

After a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits from Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC), the Civil Court awarded judgment to plaintiff in the principal sum of $ 2,515.75.

Plaintiff, as assignee, was required to exhaust its remedies against all potential insurance carriers before seeking relief from defendant (see Hauswirth v. American Home Assur. Co., 244 AD2d 528 [1997]; Orlin & Cohen Orthopedic Assoc. v. Motor Veh. Acc. Indem. Corp., 58 Misc 3d 132[A], 2017 NY Slip Op 51778[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017] ). Here, plaintiff did not demonstrate that it had exhausted its remedies. As a result, plaintiff's claim is premature (see Matter of Acosta-Collado v. Motor Veh. Acc. Indem. Corp., 103 AD3d 714 [2013]; Hauswirth, 244 AD2d 528).

Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.

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