Appeal from an order of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered December 3, 2013. The order, insofar as appealed from and as limited by the brief, denied plaintiff’s motion for summary judgment, granted the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first cause of action and, upon denying the remaining branches of defendant’s motion for summary judgment, made, in effect, a finding, for all purposes in the action, that defendant’s denial of claim forms had been timely and properly mailed.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first cause of action is denied and by vacating the finding, for all purposes in the action, that defendant’s denial of claim forms had been timely and properly mailed; as so modified, the order, insofar as appealed from, is affirmed, without costs.

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. The Civil Court denied plaintiff’s motion for summary judgment, granted the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first cause of action, and, upon denying the remaining branches of defendant’s motion for summary judgment, made, in effect, a finding, among others, for all purposes in the action, that defendant’s denial of claim forms had been timely and properly mailed.

Plaintiff correctly argues on appeal that the affidavit 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 that the branch of its motion seeking summary judgment dismissing plaintiff’s first cause of action, which was based upon defendant’s allegation that it had properly paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule, should have been granted, or that it is entitled to a finding for all purposes in the action that its denial of claim forms were timely and properly mailed.

However, contrary to plaintiff’s contention, plaintiff failed to demonstrate its prima facie entitlement to summary judgment, as the affidavit plaintiff submitted in support of its motion [*2]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. 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]).

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing plaintiff’s first cause of action is denied and by vacating the finding, for all purposes in the action, that defendant’s denial of claim forms had been timely and properly mailed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.), entered October 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 for summary judgment dismissing the complaint.

In support of its cross motion for summary judgment, defendant asserted that there was no coverage for the accident because plaintiff’s assignor’s insurance policy had been cancelled prior to the accident. The supporting affidavits of defendant’s employees both stated that the notice of cancellation had been issued and mailed to the assignor on June 28, 2011, and the affidavit of defendant’s underwriting supervisor simply stated that the notice had been mailed in the regular course of business. While the affidavit of defendant’s no-fault litigation supervisor described defendant’s mailing practices and procedures with respect to claims processing, it did not describe the process involved where other correspondence, such as a notice of cancellation, is mailed. As a result, defendant failed to establish, prima facie, that the notice of cancellation had been mailed to the insured in order to effectuate the cancellation (see generally Vehicle and Traffic Law § 313; Banking Law § 576). Therefore, defendant was not entitled to summary judgment dismissing the complaint on this basis.

The affidavit of defendant’s no-fault litigation supervisor, however, was sufficient to establish, prima facie, defendant’s alternative ground for relief, i.e., that it had not received the claim form at issue. In opposition, plaintiff submitted an affidavit by its owner demonstrating that the claim form had been mailed to defendant. Consequently, a triable issue of fact exists as to the submission of the claim form (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]; 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 2015]; see also Lenox Hill Radiology v Great N. Ins. Co., 50 [*2]Misc 3d 142[A], 2016 NY Slip Op 50206[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2016]; cf. Bright Med. Supply Co. v Tri State Consumer Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51122[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).

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

Solomon, J.P., Aliotta and Elliot, JJ., concur.

Decided on September 21, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on September 21, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on September 19, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered March 26, 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 the branches of defendant’s cross motion seeking summary judgment dismissing the seventh through tenth 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, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint on various grounds.

Contrary to plaintiff’s contention as to the first through sixth causes of action, plaintiff failed to submit admissible medical proof to rebut defendant’s prima facie showing that the services at issue were not medically necessary. Plaintiff’s remaining contention as to these causes of action lacks merit (see Ortho-Med Surgical Supply, Inc. v Mercury Cas. Co., 27 Misc 3d 128[A], 2010 NY Slip Op 50587[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2010]). Consequently, plaintiff has shown no basis to disturb so much of the order as granted the branches of defendant’s cross motion seeking summary judgment dismissing those causes of action.

However, as to the seventh cause of action, plaintiff correctly argues that defendant failed to submit proof by someone with personal knowledge attesting to the nonappearance of plaintiff’s assignor for independent medical examinations (IMEs) (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Bright Med. Supply Co. v IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Consequently, the branch of defendant’s cross motion seeking summary judgment dismissing that cause of action should have been denied. However, since plaintiff failed to demonstrate that its assignor had appeared for either of the IMEs, and thereby establish that defendant’s denial based on this ground lacked [*2]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]), the branch of plaintiff’s motion for summary judgment as to this cause of action was properly denied.

Contrary to plaintiff’s argument as to the eighth cause of action, while defendant failed to prove any defense as to the claim underlying this cause of action, the record does not demonstrate that defendant conceded owing this claim. Moreover, plaintiff failed to establish its prima facie entitlement to summary judgment on this cause of action, since the proof submitted by plaintiff failed to establish that this claim 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 form with respect thereto that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr., 78 AD3d 1168; Ave T MPC Corp., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U]). Thus, we find that neither party was entitled to summary judgment as to this cause of action.

Finally, as to the ninth and tenth causes of action, we find that there is a triable issue of fact as to whether defendant received the claims underlying those causes of action (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing the seventh through tenth causes of action are denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.

Decided on September 19, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on September 19, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on September 19, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS

Decided on September 19, 2016

SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS