Palin Winotaka, L.Ac. v MVAIC

[*1] Palin Winotaka, L.Ac. v Mvaic 2012 NY Slip Op 50391(U) Decided on March 2, 2012 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 2, 2012
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON and RIOS, JJ
2010-808 K C.

Palin Winotaka, L.Ac. as Assignee of JANICE MULLINGS, Respondent,

against

MVAIC, Appellant.

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 AD2d 528 [1997]; Modern Art Med., P.C. v MVAIC, 22 Misc 3d 126[A], 2008 NY Slip Op 52586[U] [App Term, 2d & 11th Jud Dists 2008]; Doctor Liliya Med., P.C. v MVAIC, 21 Misc 3d 143[A], 2008 NY 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 [*2]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.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: March 02, 2012