Armengol v. MVAIC

• Decision Date: 10 December 2021
• Docket Number: 2019-1160 K C
• Citation: 2021 NY Slip Op 51207 (U)
• Parties: Sonia Armengol, M.D., as Assignee of Trey Willis, Evytte Lewis and Suheidy Nunez, Respondent, v. MVAIC, Appellant.
• Court: New York Supreme Court

2021 NY Slip Op 51207(U)

Sonia Armengol, M.D., as Assignee of Trey Willis, Evytte Lewis and Suheidy Nunez, Respondent, v. MVAIC, Appellant.

2019-1160 K C

Supreme Court of New York, Second Department

December 10, 2021

Unpublished Opinion

PRESENT:: THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, DONNA-MARIE E. GOLIA, JJ.

Marshall & Marshall, PLLC (Frank D'Esposito of counsel), for appellant.

Zara Javakov, P.C. (Zara Javakov of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York Kings County (Robin S. Garson, J.), entered May 15, 2019. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered to Trey Willis and Suheidy Nunez are granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from an order of the Civil Court which denied defendant's motion for summary judgment dismissing the complaint.

The branch of MVAIC's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered to Trey Willis was based on plaintiff's failure to exhaust its remedies against the vehicle's owner. As the record establishes that plaintiff's assignor, Trey Willis, was aware of the identity of the owner of the vehicle in which Willis was a passenger 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 A.D.2d 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]). Consequently, the branch of MVAIC's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered to Trey Willis should have been granted.

The branch of MVAIC's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered to Suheidy Nunez was based on Suheidy Nunez's failure to file a timely notice of intention to file a claim. "The filing of a timely affidavit providing the MVAIC with notice of intention to file a claim is a 'condition precedent to the right to apply for payment from [MVAIC]' (see Insurance Law § 5208 [a] [I], [3]). Compliance with the statutory requirement of timely filing a notice of claim must be established in order to demonstrate that the claimant is a 'covered person,' within the meaning of the statute entitled to recover no-fault benefits from the MVAIC" (Avicenna Med. Arts, P.L.L.C. v MVAIC, 53 Misc.3d 142 [A], 2016 NY Slip Op 51535[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [citations omitted]; see Insurance Law §§ 5208 [a] [1], [3]; 5221 [b] [2]). As MVAIC established that it had not...