Fatiha Ibrahim, D.C. v MVAIC

[*1] Fatiha Ibrahim, D.C. v MVAIC 2009 NY Slip Op 52125(U) [25 Misc 3d 130(A)] Decided on October 19, 2009 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 19, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2008-1382 Q C.

Fatiha Ibrahim, D.C. a/a/o GLADYS SANCHEZ, Respondent,

against

MVAIC, Appellant.

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.

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 [1997]; 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 [1980]). 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.
Decision Date: October 19, 2009