The Rogak Report: 23 Jul 2008 (Part VII) ** MVAIC - Exhaustion of Remedies **
NO-FAULT SUIT AGAINST MVAIC DISMISSED AS PREMATURE: REMEDIES AGAINST KNOWN DRIVER NOT YET EXHAUSTED
Complete Med. Servs. of N.Y., P.C. a/a/o Tieyasha McVay v. MVAIC 2008 NYSlipOp 51541(U) Decided on July 10, 2008 Appellate Term, Second Department Edited by Lawrence N. Rogak
In this no-fault suit, MVAIC appealed from an order of the Civil Court, Queens County (Diane A. Lebedeff, J.), which denied defendant's cross motion for summary judgment. The Appellate Term reversed.
"In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant MVAIC cross-moved for summary judgment dismissing the complaint."
"MVAIC argued that the action was premature since plaintiff and its assignor failed to exhaust all remedies against the driver and the owner of the taxicab which struck plaintiff's assignor before seeking relief from MVAIC. MVAIC also asserted that the action was premature since plaintiff's assignor failed to provide sufficient information so that MVAIC could determine whether she was a qualified person. The court held that plaintiff failed to make a prima facie showing of its entitlement to summary judgment and that MVAIC's cross motion for summary judgment based upon the assignor's lack of qualification lacked merit. This appeal by defendant ensued."
"Since plaintiff and its assignor are aware of the identities of the driver and the owner of the taxicab which struck plaintiff's assignor, plaintiff, as assignee, must first exhaust its remedies against the driver and the owner of the taxicab before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 ). If plaintiff unsuccessfully exhausts its remedies against the driver and the owner of the taxicab, plaintiff may assert a claim against MVAIC pursuant to Insurance Law § 5218 (c)."
"However, until plaintiff exhausts its remedies, its claim against MVAIC is premature. Consequently, MVAIC's cross motion for summary judgment should have been granted. In light of the foregoing, we reach no other issue."