Thursday, January 8, 2009

You Didn't Lose, So Why Are You Here?

Modern Art Medical, P.C. a/a/o Espiridion Mejia v. MVAIC

(App. Term, 2nd Dept., decided 12/31/2008)

Before a claimant may proceed with a claim against MVAIC, he must, among other things, exhaust all legal remedies against a known driver or owner of the offending vehicle.

New York Insurance Law § 5218(c) provides:
§ 5218. Procedure for "hit and run" cases.
(c) In any action in which the plaintiff is a qualified person, for the death of, or bodily injury to, any person arising out of the ownership, maintenance or use of a motor vehicle in this state and judgment is rendered for the defendant on the sole ground that the death or personal injury was occasioned by a motor vehicle: (i) the identity of which, and of the owner and operator of which, has not been established, or (ii) which was in the possession of some person other than the owner or his agent without the consent of the owner and the identity of the operator has not been established, that ground shall be stated in the judgment. The plaintiff, upon complying with paragraph one of subsection (a) of section five thousand two hundred eight of this article, may within three months from the date of the entry of the judgment make application to bring an action upon the cause against the corporation in the manner provided in this section.
Plaintiff medical provider sued MVAIC for no-fault benefits and moved for summary judgment.   Queens Civil granted plaintiff's motion and MVAIC appealed. 

In REVERSING the Civil Court's order, the Appellate Term, Second Department, reminded:
Since plaintiff and its assignor were aware of the identity of the owner of the vehicle which plaintiff's 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 (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; Dr. Abakin, D.C., P.C. v MVAIC, 21 Misc 3d 134[A], 2008 NY Slip Op 52186[U] [App Term, 2d & 11th Jud Dists 2008]; Complete Med. Servs. of N.Y., P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U] [App Term, 2d & 11th Dists 2008]). Accordingly, since plaintiff did not demonstrate that it exhausted its remedies against the owner of the vehicle which allegedly struck plaintiff's assignor, plaintiff's motion for summary judgment should have been denied.
Presumably, the legal remedy plaintiff medical provider did not exhaust would not have been against the vehicle's owner, but against the owner's no-fault insurer.  This is, after all, a claim for no-fault coverage benefits.

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