Advanced Recovery Equip. & Supplies, LLC v Park Ins. Co. (2018 NY Slip Op 51630(U))

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

Advanced Recovery Equipment and Supplies, LLC, as Assignee of Yvrose Joseph, Respondent,

v

Park Insurance Company, Appellant.

Gullo & Associates, LLP (Cristina Carollo of counsel), for appellant. Baker Sanders, LLC, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 9, 2016. 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, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

Contrary to defendant’s argument, it failed to establish, as a matter of law, an exhaustion of the coverage limits of the insurance policy at issue, as it did not demonstrate that the policy had been exhausted at the time the claim at issue was complete (see 11 NYCRR 65-3.15; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]; see also 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 affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.