Marshall & Marshall, PLLC (Angelique Evangelista and Frank D'Esposito of counsel), for appellant.

The Rybak Firm, PLLC (Oleg Rybak, of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), dated October 9, 2024. The order, insofar as appealed from, in effect, denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits in the total amount of $2,289.13 for services rendered from October 2017 through April 2018, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the complaint on the ground of exhaustion of available coverage. Plaintiff cross-moved for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) deeming certain facts established for all purposes in this action. By order dated October 9, 2024, the Civil Court (Odessa Kennedy, J.), in effect, denied the motion and cross-motion, but found, in effect pursuant to CPLR 3212 (g), that "plaintiff establishe[d] its prima facie case of timely and properly submitting the bills in question and defendant issued timely denials." The court held that triable issues of fact remained as to MVAIC's exhaustion of coverage and fee schedule defenses.

To obtain summary judgment on its asserted defense that the limits of any available coverage had already been exhausted, MVAIC had to prove that its payments exhausted the available coverage in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d 934 [2021]). Here, the affidavit of MVAIC's claims representative was sufficient to lay a [*2]foundation for MVAIC's payment log to be admitted as a business record (see CPLR 4518 [a]). However, as the payment log does not set forth the dates on which MVAIC had received the various claims and the dates on which such claims became fully verified, MVAIC failed to demonstrate, as a matter of law, that the limits of the available coverage had been exhausted in accordance with 11 NYCRR 65-3.15. Consequently, MVAIC's motion for summary judgment dismissing the complaint was properly denied (see JFL Med. Care, P.C. v MVAIC, 81 Misc 3d 145[A], 2024 NY Slip Op 50202[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).

We note that, while the Civil Court held that a triable issue of fact exists as to MVAIC's fee schedule defense, MVAIC did not raise a fee schedule defense in support of its motion for summary judgment.

Accordingly, the order, insofar as appealed from, is affirmed.

QUIÑONES, J.P., MUNDY and OTTLEY, JJ., concur.