Opinion
2008-1382 Q C.
Decided October 19, 2009.
Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered May 12, 2008. The order denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed without costs.
PRESENT: PESCE, P.J., WESTON and RIOS, JJ.
In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the complaint, arguing, inter alia, that the action was premature since plaintiff and plaintiff's assignor failed to exhaust all remedies against the owner of the vehicle that plaintiff's assignor was driving before seeking relief from MVAIC. The Civil Court denied MVAIC's motion, holding that "MVAIC did not conform to the verification request protocol mandated by the Insurance Regulations of New York."
Where, as here, plaintiff and his assignor are 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, is required to exhaust its remedies against the vehicle's owner before seeking relief from MVAIC ( Hauswirth v American Home Assur. Co., 244 AD2d 528; Complete Med. Servs. of NY, P.C. v MVAIC , 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U] [App Term, 2d 11th Jud Dists 2008]). However, under the facts of this case, MVAIC's motion for summary judgment was properly denied since the motion papers contained what appeared to be only the last page of an affidavit executed by MVAIC's claims examiner, which did not establish, by one with personal knowledge of the facts, plaintiff's failure to exhaust his remedies against the vehicle's owner ( see Zuckerman v City of New York, 49 NY2d 557). Accordingly, defendant did not demonstrate a prima facie entitlement to summary judgment and, thus, the order is affirmed.
Pesce, P.J., Weston and Rios, JJ., concur.