LIDA MEDICAL SUPPLY INC v. MVAIC (2019)

ORDERED that the judgment is reversed, with $30 costs, the order entered June 13, 2018 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

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 for summary judgment dismissing the complaint and plaintiff cross-moved for summary judgment. MVAIC's appeal from an order of the Civil Court entered June 13, 2018 denying MVAIC's motion and granting plaintiff's cross motion is deemed to be from a judgment in favor of plaintiff in the principal sum of $844.13 that was entered on August 3, 2018 pursuant to the order (see CPLR 5501 [c]).

Since plaintiff's assignor was aware of the identity of the owner of the vehicle which the assignor was driving at the time of the accident, 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]; Compas Med., P.C. v. MVAIC, 42 Misc 3d 150[A], 2014 NY Slip Op 50414[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014] ). Here, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle (see BLR Chiropractic, P.C. v. MVAIC, 33 Misc 3d 131[A], 2011 NY Slip Op 51878[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; see also BLR Chiropractic, P.C. v. MVAIC, 36 Misc 3d 129[A], 2011 NY Slip Op 52517[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011] ).

Accordingly, the judgment is reversed, the order entered June 13, 2018 is vacated, defendant's motion for summary judgment dismissing the complaint is granted and plaintiff's cross motion for summary judgment is denied.

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