Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered July 18, 2006. The order denied defendant's motion for summary judgment dismissing the complaint.

Order reversed without costs and defendant's motion for summary judgment dismissing the complaint 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) sought summary judgment dismissing the complaint based upon plaintiff's failure to establish that its assignor was a "qualified person" (Insurance Law § 5202 [b]) entitled to receive no-fault benefits from MVAIC. Defendant also argued that the action was premature since plaintiff had not demonstrated that all remedies against the owner of the vehicle had been exhausted before seeking relief from MVAIC. The court below denied the motion, holding that defendant had failed to establish its entitlement to summary judgment as a matter of law. This appeal by defendant ensued.

Since plaintiff and its assignor were aware of the identity of the owner of the vehicle which struck plaintiff's assignor, plaintiff, as assignee, was required to exhaust its remedies against the owner of the vehicle before seeking relief from MVAIC (Hauswirth v American Home Assur. Co., 244 AD2d 528 [1997]; 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 Jud Dists 2008]). Should such remedies ultimately be unsuccessful, plaintiff may then assert a claim against MVAIC. Until such time as plaintiff has exhausted its remedies, however, its claim against MVAIC is premature. Accordingly, MVAIC's motion for summary judgment should have been granted. [*2]

Pesce, P.J., Rios and Steinhardt, JJ., concur.
Decision Date: September 03, 2008