New Millennium Med. Imaging, P.C. v. M.V.A.I.C.

New Millennium Medical Imaging, P.C., as Assignee of Curtis Sankar Guevarro, Appellant, against M.V.A.I.C., Respondent. Law Offices of Damin J. Toell, P.C. (Damin J. Toell of counsel), for appellant. Marshall & Marshall, PLLC (Tracy Bader Pollack of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Richard J. Montelione, J.), entered January 27, 2017. The order granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment. ORDERED that the order is affirmed, with $25 costs. In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as M.V.A.I.C.) for summary judgment dismissing the complaint and denied plaintiff's cross motion for summary judgment. Since plaintiff's assignor was aware of the identity of the owner of the vehicle which struck plaintiff's assignor at the time of the accident, plaintiff, as assignee, was required to exhaust its remedies against the vehicle's owner before seeking relief from defendant (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 [*2]Dept, 2d, 11th & 13th Jud Dists 2011]). Accordingly, the order is affirmed. PESCE, P.J., WESTON and ALIOTTA, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: August 02, 2019