Opinion
No. 2010–808 K C.
2012-03-2
PALIN WINOTAKA, L.AC. as Assignee of Janice Mullings, Respondent, v. MVAIC, Appellant.
Present: PESCE, P.J., WESTON and RIOS, JJ.
Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered April 25, 2006. The order, insofar as appealed from, denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order, insofar as appealed from, 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 so much of an order as denied its motion for summary judgment dismissing the complaint.
Where a plaintiff and its assignor are aware of the identity of the owner of the vehicle in which the assignor was a passenger at the time of the accident, the 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 A.D.2d 528 [1997];Modern Art Med., P.C. v. MVAIC, 22 Misc.3d 126[A], 2008 N.Y. Slip Op 52586[U] [App Term, 2d & 11th Jud Dists 2008]; Doctor Liliya Med., P.C. v. MVAIC, 21 Misc.3d 143[A], 2008 N.Y. Slip Op 52453[U] [App Term, 2d & 11th Jud Dists 2008] ). In the instant case, we find that plaintiff has demonstrated the existence of an issue of fact as to whether its remedies against the vehicle's owner have been exhausted. As a result, defendant is not entitled to summary judgment dismissing the complaint.
Accordingly, the order, insofar as appealed from, is affirmed.