725730/2016

Attorney for Plaintiff:
Damin J. Toell Esq. from the Law Offices of Damin J. Toell, P.C.

Attorney for Defendant:
Jamila Shukry Esq. from McCormack & Mattei, P.C.

In this action by a provider to recover assigned first-party no-fault benefits, Plaintiffs seeks reimbursement for chiropractic manipulation under anesthesia of assignor Maria Baez’ cervical spine, thoracic spine, lumbar spine, pelvis and left shoulder on December 21, 2016, January 4, 2016 and January 8, 2016, arising out of an accident on October 13, 2015.

Both parties stipulated that Plaintiff established its prima facie case by timely submitting the bills at issue to Defendant and Defendant established timely mailing the denial. The sole issues remaining for trial were the defenses of medical necessity and whether Plaintiff was properly reimbursed by Defendant pursuant to the fee schedule and calculations applied.

A bench trial was commenced and completed on October 24, 2017. Defendant produced a chiropractor, Dr. Thomas McLaughlin who conducted a peer review of Ms. Baez’ records and testified that the series of manipulations under anesthesia performed on Ms. Baez were not medically necessary. Dr. McLaughlin testified that Ms. Baez did not have surgery, and generally, most patients who receive manipulation under anesthesia are people who recently underwent surgery and cannot move a joint because of the increase of scar tissue (tr at pp. 18-19). Furthermore, Dr. McLaughlin testified that Ms. Baez’ records indicate she had an upper neuron region disorder and manipulation under anesthesia would be inappropriate for a person with such a disorder (tr at p. 15 lines 3-14). Dr. McLaughlin also testified that, in this case, Ms. Baez’ medical records reflected that Ms. Baez’ condition since the accident remained consistent in many respects, but showed improvement in others, and Plaintiff did not allow Ms. Baez to proceed with physical therapy to its full potential before performing manipulation under anesthesia (tr at p. 32 lines 1-10). He testified that some of Ms. Baez’ other doctors recommended further physical therapy, and none of them recommended manipulation under anesthesia (tr at p. 24 lines 12-20). Dr. McLaughlin also testified on direct examination that Ms. [*2]Baez’ initial consultation for manipulation was performed on the same date as her first manipulation under anesthesia (tr at p. 14 lines 5-16), but, on cross-examination, Dr. McLaughlin admitted that his statement on direct examination was incorrect and that the initial consultation for manipulation under anesthesia was actually five days before the first procedure (tr at pp. 25-26).

Specifically, Dr. McLaughlin testified that, Dr. Alex Khait, the doctor who performed the procedures on Ms. Baez, used the National Academy of Manipulation Under Anesthesia guidelines in deciding to perform the procedure, and that under the guidelines the procedure should be used when it would be the “most efficacious care for the person.” He disagreed that manipulation under anesthesia was the “most efficacious care” for Ms. Baez at the time it was done (tr at p. 18 lines 7-24).

Defendant also produced Christine Madigan, a Senior Litigation Representative for Defendant who testified that Defendant was billed for $3,572.91, and should have been instead been billed $1,462.47, based on the correct fee schedule (tr at p. 37 lines 21-25). Ms. Madigan testified which codes and modifiers should have been used and how often they should have been billed in calculating its invoice. During her testimony, Ms. Madigan testified that Defendant was charged three times in one day for manipulation under anesthesia to the cervical, thoracic and lumbar spines, even though the code should have been billed only once per day under the multiple procedure rule (tr at p. 47 lines 3-11).

Plaintiff presented an additional witness, chiropractor Dr. Robert Luca, to rebut Dr. McLaughlin’s testimony regarding the medical necessity of the procedures. Dr. Luca testified twenty-five points of contention with Dr. McLaughlin’s analysis. He testified that manipulation under anesthesia served to “restore the proper joint both mechanical and physiological” with stretching to remobilize the joint and “re-establish the normal or near normal resting length of the muscles tendons and ligaments as well as reactivate something called collateral inhibition physiological response” (tr at p. 54 lines 7-24). He testified that the procedure is not only reserved for patients who have undergone surgery. Among his reasons that the procedure was necessary in Ms. Baez’ case was that “the patient has responded favorably to conservative chiropractic medical treatment, but continued to experience chronic pain or persistent pain”; Ms. Baez had two to six weeks of care at least before the procedure, but suffered continuing pain that interfered with her lifestyle, and Ms. Baez refused other options for treatment (tr at p. 56 lines 3-23). He stated that these reasons were listed in the criteria set by the National Academy of Manipulation Under Anesthesia for a patient who would be an appropriate candidate for manipulation under anesthesia (tr at pp. 55-56). He also disagreed with Dr. McLaughlin and stated that, from his review of the medical records and the peer review, it appeared that Ms. Baez had “plateaued” and was “rebounding” into a “downward cycle,” even though her initial response to treatment was good (tr at p. 62 lines 10-25). He also thought that Ms. Baez received a sufficient course of treatment prior to manipulation under anesthesia (tr at p. 63 lines 6-13).

The issue here is whether Defendant, through the testimony of its expert witness, satisfied its burden of establishing a lack of medical necessity and, if it did so, whether Plaintiff proved, by a preponderance of the evidence, that the services rendered were medically necessary (see New Horizon Surgical Ctr, LLC v Allstate Ins. Co., 52 Misc 3d 139[A][App Term 2d Dept 2016]; see also Park Slope Med. & Surgical Supply v Travelers Ins. Co., 37 Misc 3d 19 [App Term, 2d Dept 2012]).

“A no-fault insurer defending a denial based on lack of ‘medical necessity’ must at least show that the services were inconsistent with generally accepted medical/professional practice (Citywide Soc. Work & Psy. Serv., PLLC v Travelers Indem. Co., 3 Misc 3d 608, 609 [Civ Ct, Kings County 2004]). “Generally accepted practice is that range of practice that the profession will follow in the diagnosis and treatment of patients in light of the standards and values that define its calling” (Id. at 616). Unless there is reference to “generally accepted” medical/professional practice, conflicting expert testimony will only show a difference in professional medical judgment between two doctors (Id. at 612).

In this trial, the conflicting opinions of Dr. McLaughlin and Dr. Luca demonstrate a difference in professional medical judgment regarding whether manipulation under anesthesia was appropriate for the assignor in this case, in light of the standards set forth by the National Academy of Manipulation Under Anesthesia.

Defendant did not present sufficient evidence to establish that the manipulation under anesthesia was inconsistent with generally accepted professional practice considering Ms. Baez’ medical treatment and condition at the time. Therefore, the evidence was insufficient to carry defendant’s burden of proving that the services were not medically necessary.

However, based on the credible and uncontroverted testimony of Ms. Madigan, this court finds that Defendant has met its burden of showing that the appropriate amount for the invoices at issue was $1,462.47 instead of $3,572.91. Plaintiff submitted no evidence or testimony to rebut Ms. Madigan’s testimony.

Therefore, judgment is awarded in favor of Plaintiff. The Clerk is directed to enter judgment in favor of Plaintiff in the amount of $1,462.47, together with applicable statutory interest, attorney fees and costs.

This constitutes the Decision and Order of the Court.

Dated: December 13, 2017
Kings, New York
____________________
Mary V. Rosado, J.C.C.

Decided on December 12, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2773 Q C

The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered November 6, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first and second causes of action are denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims based upon plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs). By order entered November 6, 2014, the Civil Court granted defendant’s motion.

Defendant’s moving papers failed to establish that the first EUO scheduling letter that defendant had sent to plaintiff was timely with respect to the claims underlying the first and second causes of action, as defendant stated that the letter had been sent more than 30 days after [*2]defendant had received those claims (see Neptune Med. Care, P.C. v Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, defendant failed to demonstrate that it had properly and timely denied those claims based upon plaintiff’s failure to comply with a condition precedent to coverage (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

However, although the first EUO scheduling letter was mailed more than 15 business days after the claim underlying the third cause of action had been received, the NF-10 denying this claim was nevertheless timely (see 11 NYCRR 65-3.8 [l] [providing that deviations from the verification time frames reduce the 30 days to pay or deny the claim by the same number of days that the verification request was late]).

Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing the first and second causes of action are denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on December 12, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2271 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Offices of Aloy O. Ibuzor (Arvind Purohit, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered August 13, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had failed to provide requested verification. By order entered August 13, 2014, the Civil Court granted defendant’s motion.

In support of its motion for summary judgment dismissing the complaint, defendant established that it had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the motion, plaintiff submitted an [*2]affidavit from plaintiff’s owner, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether this action is premature (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).

Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on December 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-144 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Law Office of Nancy Linden, for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered December 10, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).

In support of its cross motion, defendant failed to establish that the initial and follow-up IME scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v [*2]Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As a result, defendant failed to demonstrate that the IMEs had been properly scheduled and, thus, that plaintiff’s assignor had failed to appear at duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, defendant is not entitled to summary judgment dismissing the first and third through sixth causes of action.

However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment on those causes of action, as the affidavit plaintiff submitted in support of its motion failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued timely denials of claim that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

There is a triable issue of fact as to whether defendant received the claim form underlying the second cause of action (see Compas Med., P.C. v 21st Century Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50388[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on December 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2015-8 K C

Kopelevich & Feldsherova, P.C. (Galina Feldsherova, Esq.), for appellant. Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered October 28, 2014. The order granted 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, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s contention, the proof submitted by defendant established that plaintiff had failed to appear for duly scheduled examinations under oath (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Ortho Prods. & Equip., Inc. v Interboro Ins. Co., 41 Misc 3d 143[A], 2013 NY Slip Op 52054[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Furthermore, “the failure to set forth the dates of the scheduled examinations in the denial of claim form[s] did not render the denial[s] conclusory, vague, or without merit as a matter of law” (Quality Psychological Servs., P.C. v Avis [*2]Rent-A-Car Sys., LLC, 47 Misc 3d 129[A], 2015 NY Slip Op 50378[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Plaintiff’s remaining contentions lack merit or were raised for the first time on appeal.

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on December 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2916 K C

Freiberg, Peck & Kang, LLP (Yilo J. Kang, Esq.), for appellant. Zara Javakov, P.C. (Zara Javakov, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered October 20, 2014. The order, insofar as appealed from, 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, defendant appeals from so much of an order of the Civil Court as denied defendant’s motion which had sought summary judgment dismissing the complaint based upon a lack of medical necessity.

Upon a review of the record, we find that there is a triable issue of fact regarding the medical necessity of the services at issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on December 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2638 K C

Robyn M. Brilliant, P.C. (Robyn M. Brilliant, Esq.), for appellant. Anna Rusanov, P.C. (Anna Rusanov, Esq.), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered September 11, 2014. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, the order is affirmed, without 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 granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.

Defendant correctly argues that plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]) or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. [*2]v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). Consequently, plaintiff’s motion for summary judgment should have been denied.

However, the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Thus, defendant did not demonstrate its entitlement to summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for examinations under oath.

Accordingly, the order is modified by providing that plaintiff’s motion for summary judgment is denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on December 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2629 K C

Kopelevich & Feldsherova, P.C. (Galina Feldsherova, Esq.), for appellant. Law Offices of Aloy O. Ibuzor (Gregory W. Broido, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Shears, J.), entered October 3, 2014. The order granted 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, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint.

Contrary to plaintiff’s arguments on appeal, defendant established that plaintiff had failed to appear for properly scheduled examinations under oath (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]) and that the claims had been timely denied on that ground (see Arco Med. NY, P.C. v Lancer Ins. Co., 34 Misc 3d 134[A], 2011 NY Slip Op 52382[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on December 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2313 K C

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum, Esq.), for appellant. Law Offices of Ilona Finkelshteyn (Marina Josovich, Esq.), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 16, 2014. The order, insofar as appealed from and as limited by the brief, denied the branch of defendant’s cross motion seeking to compel plaintiff to appear for an examination before trial.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, the branch of defendant’s cross motion seeking to compel plaintiff to appear for an examination before trial is granted and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint or, in the alternative, to compel plaintiff to appear for an examination before trial (EBT). Insofar as is relevant to this appeal, upon denying plaintiff’s motion for summary judgment and the branch of defendant’s cross motion seeking summary judgment dismissing the complaint, the Civil Court implicitly denied the branch of defendant’s cross motion seeking, in [*2]the alternative, to compel plaintiff to appear for an EBT.

As defendant’s moving papers established that defendant had served plaintiff with a notice for an EBT, which examination was material and necessary to defendant’s lack of medical necessity defense (see Great Wall Acupuncture, P.C. v General Assur. Co., 21 Misc 3d 45, 47 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2008]), the branch of defendant’s motion seeking to compel plaintiff to appear for an EBT should have been granted (see CPLR 3101 [a]).

Accordingly, the order, insofar as appealed from, is reversed, the branch of defendant’s cross motion seeking to compel plaintiff to appear for an examination before trial is granted and the examination shall be held within 60 days of the date of this decision and order, at such time and place to be specified in a written notice by defendant of not less than 10 days, or at such other time and place as the parties may agree upon.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.

Decided on December 8, 2017
SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS
PRESENT: : MICHAEL L. PESCE, P.J., THOMAS P. ALIOTTA, MARTIN M. SOLOMON, JJ
2014-2266 Q C

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Thomas Torto, Esq., for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered June 19, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the first cause of action is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the grounds that the first cause of action was premature due to plaintiff’s failure to provide verification and that plaintiff had submitted the claim underlying the second cause of action more than 45 days after the medical supplies at issue had been furnished. By order entered June 19, 2014, the Civil Court granted defendant’s motion.

Contrary to plaintiff’s contentions, defendant’s proof with respect to the claim underlying the first cause of action was sufficient to demonstrate, prima facie, that defendant had properly [*2]mailed the initial and follow-up verification requests (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that it had not received the requested verification, and, thus, that the cause of action is premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, as plaintiff further argues, the affidavit submitted by plaintiff’s employee in opposition to defendant’s motion, was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). In light of the foregoing, there is a triable issue of fact as to whether the first cause of action is premature (see Compas Med., P.C. v Praetorian Ins. Co., 49 Misc 3d 152[A], 2015 NY Slip Op 51776[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).

Contrary to plaintiff’s additional contention, the record establishes that the claim underlying the second cause of action had been untimely submitted(see 11 NYCRR § 65-1.1) and that defendant had timely denied the claim on that ground (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). In opposition, plaintiff failed to raise a triable issue of fact with respect thereto.

Accordingly, the order is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing the first cause of action is denied.

PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.