June 23, 2017

Island Life Chiropractic, P.C. v Commerce Ins. Co. (2017 NY Slip Op 50856(U))

Headnote

The court considered the motion for summary judgment filed by the defendant, Commerce Ins. Co., in a case brought by Island Life Chiropractic, P.C. to recover first-party no-fault benefits. The main issue decided was whether the insurance policy provided by Commerce Ins. Co. had been exhausted, as the defendant contended that the $50,000 in personal injury protection benefits had been paid out in claims and that the coverage limits had been reached. However, the court held that the defendant had failed to establish, as a matter of law, that the policy had been exhausted at the time the claim at issue was complete. As a result, the court reversed the order granting the defendant's motion for summary judgment and denied the motion, finding that the defendant did not establish their entitlement to summary judgment dismissing the complaint.

Reported in New York Official Reports at Island Life Chiropractic, P.C. v Commerce Ins. Co. (2017 NY Slip Op 50856(U))

Island Life Chiropractic, P.C. v Commerce Ins. Co. (2017 NY Slip Op 50856(U)) [*1]

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

2017 NY Slip Op 50856(U) [56 Misc 3d 129(A)]

Decided on June 23, 2017

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 23, 2017

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

PRESENT: : DAVID ELLIOT, J.P., MICHAEL L. PESCE, MARTIN M. SOLOMON, JJ
2014-1875 Q C

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

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 [*2]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