Island Life Chiropractic, P.C. v. Commerce Ins. Co.

Full title: Island Life Chiropractic, P.C., as Assignee of Joseph, Jude, Appellant, v…

Court: SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Date published: Jun 23, 2017

2017 N.Y. Slip Op. 50856 (N.Y. App. Term 2017)

Opinion

2014-1875 Q C

06-23-2017

Island Life Chiropractic, P.C., as Assignee of Joseph, Jude, Appellant, v. Commerce Ins. Co., Respondent.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

DAVID ELLIOT, J.P., MICHAEL L. PESCE, MARTIN M. SOLOMON, JJ

PRESENT: :

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.

Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered June 25, 2014. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint.

Defendant's motion sought summary judgment on the ground that the amount of available coverage had been exhausted. Although the insurance policy had been issued in Massachusetts, defendant acknowledged that, pursuant to New York law, the insurance policy provided $50,000 in personal injury protection benefits. Defendant further contended that claims exceeding $50,000 had been received and that defendant had paid $50,000 in accordance with 11 NYCRR 65-3.15. However, defendant failed to establish, as a matter of law, an exhaustion of the coverage limits of the insurance policy at issue, as defendant did not demonstrate that the policy had been exhausted at the time the claim at issue was complete (see 11 NYCRR 65-3.15; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]). Consequently, defendant did not establish its entitlement to summary judgment dismissing the complaint.

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied.

ELLIOT, J.P., PESCE and SOLOMON, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: June 23, 2017