Healthway Med. Care, P.C. v. MVAIC

Healthway Medical Care, P.C., as Assignee of Thomas, Heather, Respondent, against MVAIC, Appellant. Marshall & Marshall, PLLC (Barbara Carabell of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent. Appeal from a judgment of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered July 27, 2016. The judgment, entered pursuant to a decision of that court dated July 12, 2016, after a nonjury trial, awarded plaintiff the principal sum of $2,515.75. 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 [*2]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. ENTER: Paul Kenny Chief Clerk Decision Date: May 03, 2019