|Ortho Passive Motion, Inc. v Allstate Ins. Co.|
|2018 NY Slip Op 51749(U)|
|Decided on November 29, 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|This opinion is uncorrected and will not be published in the printed Official Reports.|
Peter C. Merani, P.C. (Eric M. Wahrburg and Adam Kass of counsel), for appellant. Israel, Israel & Purdy, LLP (Ryan B. Berry of counsel), for respondent.
Appeal from an order of the District Court of Nassau County, Third District (Scott Fairgrieve, J.), dated March 1, 2017. The order, insofar as appealed from as limited by the brief, denied the branch of defendant's motion seeking to modify a judgment of that court entered July 29, 2015, following a nonjury trial, awarding plaintiff the principal sum of $3,723.72.
ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.
In this action to recover assigned first-party no-fault benefits, defendant asserted, as an affirmative defense, that the insurance policy limits had been exhausted. At a nonjury trial, the District Court (Scott Fairgrieve, J.) noted that the parties had stipulated to, among other things, defendant's timely denial of the claim at issue. Following the trial, a judgment was entered on July 29, 2015 awarding plaintiff the principal sum of $3,723.72. On November 7, 2016, defendant moved, insofar as is relevant to this appeal, pursuant to CPLR 5019 (a) and 5240, among others, to modify the judgment on the ground that the coverage limits of the insurance policy had been exhausted. Plaintiff opposed the motion. Defendant appeals from so much of an order of the District Court dated March 1, 2017 as denied the branch of defendant's motion seeking to modify the judgment, citing CPLR 5240 as authority for its requested relief.
At the outset, we note that, although defendant did not deny the claim on the ground that the coverage limits of the insurance policy at issue had been exhausted, this defense is not [*2]precluded (see New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579 ; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 55 Misc 3d 44 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).
In support of its motion, defendant argued that there are no funds available to pay the judgment because the $50,000 policy limit in basic personal injury protection had been exhausted. Assuming, arguendo, that such contention, if established, would entitle defendant to some form of postjudgment relief (see Hospital for Joint Diseases v Hertz Corp., 22 AD3d 724 ), we find that, in any event, defendant's motion papers failed to establish an exhaustion of the coverage limits of the insurance policy at issue, as defendant failed to demonstrate that the policy had been exhausted at the time the claims at issue had been deemed complete (see 11 NYCRR 65-3.15; Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 ; Alleviation Med. Servs., P.C., 55 Misc 3d 44). Consequently, defendant has established no basis to modify the judgment.
Accordingly, the order, insofar as appealed from, is affirmed
TOLBERT, J.P., BRANDS and RUDERMAN, JJ., concur.