Opinion
No. 2010–2745QC.
2012-08-6
VLADENN MEDICAL SUPPLY CORP. as Assignee of Zakiyyah Humphrey, Respondent, v. MVAIC, Appellant.
PRESENT: PESCE, P.J., RIOS and ALIOTTA, JJ.
Appeal from an order of the Civil Court of the City of New York, Queens County (Genine D. Edwards, J.), entered September 30, 2010. The order denied defendant's motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, without costs, and defendant's motion for summary judgment dismissing the complaint is granted.
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.
Since plaintiff and its assignor were aware of the identity of the owner of the vehicle which struck the vehicle in which plaintiff's assignor was allegedly a passenger, 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 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]; Dr. Abakin, D.C., P.C. v. MVAIC, 21 Misc.3d 134[A], 2008 N.Y. Slip Op 52186[U] [App Term, 2d & 11th Jud Dists 2008]; Complete Med. Servs. of NY, P.C. v. MVAIC, 20 Misc.3d 137[A], 2008 N.Y. Slip Op 51541[U] [App Term, 2d & 11th Jud Dists 2008] ). As plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle ( see e.g. Matter of Progressive Northeastern Ins. Co. v. Barnes, 30 AD3d 523 [2006];Matter of AIU Ins. Co. v. Marciante, 8 AD3d 266 [2004] ), the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.