November 8, 2018

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

https://www.beynensonlaw.com/case-law/advanced-recovery-equip-supplies-llc-v-park-ins-co-2018-ny-slipop-51630u/

Court: Appellate Term, Second Department
Decided: November 8, 2018
Citation: 2018 NY Slip Op 51630(U) · 61 Misc 3d 141(A)
Posture: Summary judgment
Outcome: Provider prevailed
Issues: Policy issues
Legal questions: Exhaustion of policy limits (see the maps)

Cite as

Advanced Recovery Equip. & Supplies, LLC v Park Ins. Co., 61 Misc 3d 141(A), 2018 NY Slip Op 51630(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2018)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

The insurer failed to show that policy limits were exhausted when the provider's claim was complete. The insurer sought summary judgment dismissing an action for assigned first-party no-fault benefits on the ground of exhausted coverage. Applying 11 NYCRR 65-3.15 and Alleviation Med. Servs., P.C. v Allstate Ins. Co., the Appellate Term, Second Department, found the proof insufficient to establish exhaustion at the relevant time as a matter of law. It affirmed the Civil Court, Kings County, order denying the insurer's motion, leaving the provider's claim pending.

Reported in New York Official Reports at Advanced Recovery Equip. & Supplies, LLC v Park Ins. Co. (2018 NY Slip Op 51630(U))

[*1]

Advanced Recovery Equip. & Supplies, LLC v Park Ins. Co.

2018 NY Slip Op 51630(U) [61 Misc 3d 141(A)]

Decided on November 8, 2018

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This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2018

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

PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, DAVID ELLIOT, JJ
2016-2086 K C

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

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.

ENTER:
Paul Kenny
Chief Clerk
Decision Date: November 08, 2018

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Exhaustion of policy limits

Open the full map

Did the insurer prove the policy’s no-fault limits were properly exhausted before it became obligated to pay the claim?

This decision: Insurer's proof did not establish exhaustion (or compliance with 65-3.15); defense fails on this record

Affirmed denial of the insurer's summary judgment motion because it did not demonstrate that the policy had been exhausted at the time the claim at issue was complete.

Limits exhaustedCoverage left when dueExhaustion not provedTriable issue / hearingDefense not heardThis decisionCites it or cited by itCited or followed

Of the 68 decisions on this question in the Second Department courts and the Court of Appeals, 34 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Alleviation Med. Servs., P.C. v Allstate Ins. Co. (2017 NY Slip Op 27097) FollowedAn insurer cannot establish policy exhaustion through payments made after it denied a fully verified claim.

Similar decisions

Ortho Passive Motion, Inc. v Allstate Ins. Co. (2018 NY Slip Op 51749(U))The insurer failed to establish policy exhaustion when the claims became complete and obtained no modification of the provider's judgment.
First Am. Alliance, Inc. v Ameriprise Ins. Co. (2018 NY Slip Op 51765(U))An insurer's payments of other claims after denying the claims sued upon do not warrant summary judgment for exhausted coverage.
Alleviation Med. Servs., P.C. v American Tr. Ins. Co. (2015 NY Slip Op 51628(U))The provider failed to establish an overdue claim or a timely denial that was conclusory, vague, or legally meritless.
JPC Med., P.C. v State Farm Mut. Auto. Ins. Co. (2022 NY Slip Op 50562(U))The insurer failed to establish policy exhaustion because its claim specialist did not lay a sufficient foundation for the payment log.
Island Life Chiropractic, P.C. v Commerce Ins. Co. (2017 NY Slip Op 50856(U))The insurer failed to establish that policy limits were exhausted when the provider's claim became complete.