Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered August 16, 2007, deemed from a judgment of said court entered September 18, 2007 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 16, 2007 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $580.06.

Judgment reversed without costs, order entered August 16, 2007 vacated and plaintiff's motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. In opposition, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) argued, inter alia, that plaintiff was not entitled to summary judgment because plaintiff's assignor failed to exhaust all
remedies against the owner of the vehicle which allegedly struck him before seeking no-fault benefits from MVAIC. The court granted plaintiff's motion for summary judgment. This appeal by MVAIC ensued. A judgment was subsequently entered (see CPLR 5501 [c]).

Since plaintiff and its assignor were 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, was 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]; Dr. Abakin, D.C., P.C. v MVAIC, 21 Misc 3d 134[A], 2008 NY Slip Op 52186[U] [App Term, 2d & 11th Jud Dists 2008]; Complete Med. Servs. of N.Y., P.C. v MVAIC, 20 Misc 3d 137[A], 2008 NY Slip Op 51541[U] [App Term, 2d & 11th Dists 2008]). Accordingly, since plaintiff did not demonstrate that it exhausted its remedies against the owner of the vehicle which allegedly struck plaintiff's [*2]assignor, plaintiff's motion for summary judgment should have been denied.

In light of the foregoing, we reach no other issue.

Pesce, P.J., Golia and Rios, JJ., concur.
Decision Date: December 31, 2008