Opinion
03-29-2017
ALLEVIATION MEDICAL SERVICES, P.C., as Assignee of Ali Al Rahabi, Respondent, v. ALLSTATE INSURANCE COMPANY, Appellant.
Peter C. Merani, P.C., Brian Kratenstein, Esq., for Appellant. Gary Tsirelman, P.C., Irena Golodkeyer, Esq., for Respondent.
Peter C. Merani, P.C., Brian Kratenstein, Esq., for Appellant.
Gary Tsirelman, P.C., Irena Golodkeyer, Esq., for Respondent.
PRESENT: MARTIN M. SOLOMON, J.P., MICHAEL L. PESCE, DAVID ELLIOT, JJ.
Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O'Connor, J.), entered April 1, 2015. The order denied defendant's motion for summary judgment dismissing the complaint. ORDERED that the order is affirmed, with $25 costs.
In this action by a provider to recover assigned first-party no-fault benefits, it is undisputed that defendant denied plaintiff's claim on May 10, 2011 on the ground of lack of medical necessity. In May 2014, defendant moved for summary judgment dismissing the complaint on the ground that the amount of available coverage had been exhausted. By order entered April 1, 2015, the Civil Court denied defendant's motion.
At the outset, we note that, although defendant did not deny the claim on the ground that the coverage limits of the insurance policy at issue had been exhausted, this defense is not precluded (New York & Presbyt. Hosp. v. Allstate
Ins. Co., 12 A.D.3d 579, 786 N.Y.S.2d 68 [2004] ; Flushing Traditional Acupuncture, P.C. v. Infinity Group, 38 Misc.3d 21, 958 N.Y.S.2d 254 [App.Term, 2d Dept., 2d, 11th & 13th Jud.Dists.2012] ).
In Nyack Hosp. v. General Motors Acceptance Corp., 8 N.Y.3d 294, 832 N.Y.S.2d 880, 864 N.E.2d 1279 (2007), the Court of Appeals, noting that no-fault benefits are overdue if not paid within 30 calendar days after receipt of a fully complete claim, held that the word "claims," as used in 11 NYCRR 65–3.15, the priority-of-payment regulation, does not encompass claims that are not yet complete because they have not been fully verified in accordance with 11 NYCRR 65–3.5(b). In contrast, in the instant case, by denying the claim on May 10, 2011, defendant implicitly declared that the claim at issue was fully verified. As we read Nyack Hosp. to hold that fully verified claims are payable in the order they are received (see 11 NYCRR 65–3.8 [b][3]; 65–3.15; Nyack Hosp., 8 N.Y.3d 294, 832 N.Y.S.2d 880, 864 N.E.2d 1279 ), defendant's argument—that it need not pay the claim at issue because defendant paid other claims after it had denied the instant claim, which subsequent payments exhausted the available coverage—lacks merit (see 11 NYCRR 65–3.15 ; cf. Nyack Hosp., 8 N.Y.3d 294, 832 N.Y.S.2d 880, 864 N.E.2d 1279 ; but see Harmonic Physical Therapy, P.C. v. Praetorian Ins. Co., 47 Misc.3d 137 [A], 2015 N.Y. Slip Op. 50525[U], 2015 WL 1649002 [App.Term, 1st Dept.2015] ). Consequently, defendant has not established its entitlement to summary judgment dismissing the complaint.
Accordingly, the order is affirmed.
SOLOMON, J.P., PESCE and ELLIOT, JJ., concur.