S.O.V. Acupuncture, P.C. v. State Farm Mut. Auto. Ins. Co.

S.O.V. Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. (2020 NY Slip Op 51365(U)) [*1] S.O.V. Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co. 2020 NY Slip Op 51365(U) [69 Misc 3d 142(A)] Decided on November 13, 2020 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 13, 2020 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS PRESENT: : THOMAS P. ALIOTTA, P.J., DAVID ELLIOT, BERNICE D. SIEGAL, JJ 2018-2152 K C S.O.V. Acupuncture, P.C., as Assignee of Joyanne Jordan, Appellant, against State Farm Mutual Automobile Ins. Co., Respondent. Gary Tsirelman, P.C. (Douglas Mace of counsel), for appellant. Rivkin Radler, LLP (Henry Mascia, Stuart M. Bodoff and Cheryl F. Korman of counsel), for respondent. Appeal from an order of the Civil Court of the City of New York, Kings County (Lorna J. McAllister, J.), entered September 20, 2018. 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 on the ground that the amount of available coverage had been exhausted. In support of its motion, defendant alleged that, after it had partially denied the claims that are the subject of this action, it paid other claims and that those subsequent payments had exhausted the available coverage. However, even if true, this allegation does not warrant summary judgment dismissing the complaint on the basis of an exhaustion of available coverage defense (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]). To the extent defendant argues, in the alternative, that the branch of its motion seeking summary judgment dismissing the complaint on the ground that [*2]it had fully paid the claims in accordance with the workers' compensation fee schedule should have been granted, as noted in plaintiff's opposing papers, defendant's moving papers failed to demonstrate, as a matter of law, that the fees charged exceeded the amount set forth in the workers' compensation fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Consequently, defendant's motion should have been denied. Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is denied. ALIOTTA, P.J., ELLIOT and SIEGAL, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: November 13, 2020