Opinion
No. 570547/22
02-27-2023
Advantage Radiology, P.C. a/a/o Mikhail Medvedovskiy, Plaintiff-Respondent, v. MVAIC, Defendant-Appellant.
Unpublished Opinion
PRESENT: Hagler, P.J., Tisch, James, JJ.
PER CURIAM.
Defendant, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Judy H. Kim, J.), entered July 1, 2021, which denied its motion for summary judgment dismissing the complaint.
Order (Judy H. Kim, J.), entered July 1, 2021, insofar as appealed from, affirmed, with $10 costs.
This action, seeking recovery of assigned first party no-fault benefits, is not ripe for summary dismissal. Defendant's submission on its summary judgment motion revealed the existence of triable issues of fact concerning whether defendant exhausted the coverage limits by payments to other providers and to the assignor for lost wages, and whether such payments were made in compliance with the priority of payment regulations (see 11 NYCRR 65-3.15; see generally New York & Presbyt. Hosp. v Allstate Ins. Co., 12 A.D.3d 579 [2004]; Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc.3d 137 [A], 2015 NY Slip Op 50525[U] [App Term, 1st Dept 2015]; cf. Country-Wide Ins. Co. v Metro Pain Specialists P.C., __ A.D.3d __, 2022 NY Slip Op 06865 [1st Dept 2022] [priority payment defense waived]).