In Murali v. Upton (175 Misc 2d 186 [Civ Ct, NY County 1997]) a portion of the legally permissible fee was still outstanding after the insured's first-party no-fault benefits were exhausted and the surgeon plaintiff sued the patient defendant. The defendant paid some of the fee and assigned to plaintiff $ 8,545 from the proceeds of his personal injury lawsuit. He then moved for dismissal of the action. The court did not dismiss, but reduced the ad damnum to that which was legally recoverable.