| Advantage Radiology, P.C. v MVAIC |
| 2023 NY Slip Op 50139(U) [78 Misc 3d 126(A)] |
| Decided on February 27, 2023 |
| Appellate Term, First 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| This opinion is uncorrected and will not be published in the printed Official Reports. |
Defendant, as limited by its brief, appeals from that portion of an order of the Civil Court of the City of New York, New York County (Judy H. Kim, J.), entered July 1, 2021, which denied its motion for summary judgment dismissing the complaint.
Per Curiam.
Order (Judy H. Kim, J.), entered July 1, 2021, insofar as appealed from, affirmed, with $10 costs.
This action, seeking recovery of assigned first party no-fault benefits, is not ripe for summary dismissal. Defendant's submission on its summary judgment motion revealed the existence of triable issues of fact concerning whether defendant exhausted the coverage limits by payments to other providers and to the assignor for lost wages, and whether such payments were made in compliance with the priority of payment regulations (see 11 NYCRR 65-3.15; see generally New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579 [2004]; Harmonic Physical Therapy, P.C. v Praetorian Ins. Co., 47 Misc 3d 137[A], 2015 NY Slip Op 50525[U] [App Term, 1st Dept 2015]; cf. Country-Wide Ins. Co. v Metro Pain Specialists P.C., — AD3d —, 2022 NY Slip Op 06865 [1st Dept 2022] [priority payment defense waived]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.