Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jimenez Salta, J.), entered February 7, 2012. 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 plaintiff’s first through seventh 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 granting defendant’s motion for summary judgment dismissing the complaint.

It is undisputed that the claims underlying plaintiff’s first through sixth causes of action were denied well over 30 days after they had been received by defendant. Plaintiff correctly argues on appeal that defendant failed to establish, as a matter of law, that it had properly tolled its time to pay or deny these claims (see 11 NYCRR 65—3.5 [b]). Consequently, defendant was not entitled to summary judgment dismissing these causes of action.

As to plaintiff’s seventh cause of action, defendant concedes on appeal that it untimely denied the claim upon which that cause of action is based and that, therefore, it is not entitled to [*2]summary judgment on this cause of action.

Finally, as to plaintiff’s eighth and ninth causes of action, contrary to plaintiff’s argument on appeal, the affidavits submitted by defendant were sufficient to demonstrate that the examination under oath scheduling letters and 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]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). As plaintiff raises no other issue on appeal with respect to these claims, plaintiff has shown no basis to disturb so much of the order as granted the branches of defendant’s motion seeking summary judgment dismissing these causes of action.

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

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered July 11, 2012. The order denied 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 granted.

In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

The affidavits submitted by defendant in support of its motion established that defendant had timely mailed requests and follow-up requests for verification related to the claim at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Defendant demonstrated that it had not received the requested verification, and plaintiff did not show that the verification had been provided to defendant prior to the commencement of the action. Consequently, the 30-day period within which defendant was required to pay or deny the claims did not begin to run (see 11 NYCRR 65-3.8 [a]; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; D & R Med. Supply v American Tr. Ins. Co., 32 Misc 3d 144[A], 2011 NY Slip Op 51727[U] [App Term, 2d, 11th & 13th Jud Dists 2011]), and, thus, plaintiff’s action is premature.

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

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered April 27, 2012. 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 reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.

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 for summary judgment dismissing the complaint.

The affidavit submitted by defendant in support of its motion for summary judgment established that defendant had timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) the denial of claim form at issue, which denied the claim on the ground of lack of medical necessity. Defendant also submitted an affirmed peer review report, which set forth a factual basis and medical rationale for the doctor’s determination that there was a lack of medical necessity for the services at issue. Plaintiff did not rebut defendant’s prima facie showing. Accordingly, the order, insofar as appealed from, is reversed and defendant’s motion for summary judgment dismissing the complaint is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

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

Decision Date: December 17, 2014

Appeal from an order of the Civil Court of the City of New York, Queens County (Barry A. Schwartz, J.), entered August 13, 2012. 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 branch of plaintiff’s motion seeking summary judgment on its first cause of action is granted and the branch of defendant’s cross 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, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint, arguing that it had properly paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion. On appeal, plaintiff argues that its motion should have been granted and that defendant’s cross motion should have been denied.

Contrary to plaintiff’s argument on appeal, defendant demonstrated that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]).

However, plaintiff correctly argues that the branch of its motion seeking summary judgment on its first cause of action should have been granted, and the branch of defendant’s cross motion seeking to dismiss that cause of action should have been denied. The affidavit submitted by plaintiff’s owner was sufficient to establish plaintiff’s prima facie entitlement to summary judgment, as it demonstrated that the claim form upon which that cause of action was based had been mailed to and received by defendant, which failed to pay or deny the claim within the prescribed 30-day period (see Insurance Law § 5106 [a]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 35 [2013]). In opposition, defendant did not demonstrate that it had timely denied that claim. While defendant argues that it tolled its time to pay or deny the claim at issue by requesting verification, the sole letter submitted by defendant in support of this contention merely notified plaintiff that defendant was delaying consideration of the claim pending an independent medical examination and an examination under oath of plaintiff’s assignor. Contrary to defendant’s argument on appeal, this letter did not toll the statutory time [*2]period within which defendant was required to pay or deny the claim (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Parsons Med. Supply, Inc. v Progressive Northeastern Ins. Co., 36 Misc 3d 148[A], 2012 NY Slip Op 51649[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the order is modified by providing that the branch of plaintiff’s motion seeking summary judgment on its first cause of action is granted and the branch

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered May 29, 2012. 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

Defendant’s moving papers established that defendant had timely denied the claim at issue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) based on a lack of medical necessity. However, 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 is modified by providing that plaintiff’s motion for summary judgment is denied.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered July 12, 2012. The order denied 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, defendant appeals from an order of the Civil Court which denied defendant’s motion for summary judgment dismissing the complaint.

Defendant sufficiently established the timely mailing of the denial of claim forms (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, 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 is affirmed.

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered March 16, 2012. The order, insofar as appealed from, upon denying plaintiff’s motion for summary judgment, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, and denied defendant’s cross 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, plaintiff moved for summary judgment, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims at issue based on a lack of medical necessity. Insofar as is relevant to this appeal, the Civil Court, upon denying plaintiff’s motion, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, denied defendant’s cross motion, and held that the only remaining issue for trial was medical necessity.

We find that defendant has failed to articulate a sufficient basis to strike the Civil Court’s implicit CPLR 3212 (g) findings in plaintiff’s favor (see EMC Health Prods., Inc. v Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d, 11th & 13th Jud Dists 2014]). Moreover, upon a review of the record, we find that there is a triable issue of fact regarding the medical necessity of the supplies 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.

Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered June 11, 2012. 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 plaintiff’s first and sixth 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 moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had timely and properly denied the claims at issue, five based upon plaintiff’s failure to appear for duly scheduled independent medical examinations (IMEs), and two on the ground that the claims exceeded the amount permitted by the workers’ compensation fee schedule. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion. Plaintiff appeals, arguing, as to defendant’s cross motion, that defendant failed to demonstrate appropriate mailing practices and procedures of the denials and IME scheduling letters, and that defendant failed to establish its fee schedule defense as a matter of law.

Contrary to plaintiff’s arguments, the affidavits submitted by defendant in support of its cross motion were sufficient to demonstrate that the denials and IME scheduling letters had been mailed pursuant to a standard office practice and procedure (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]).

As to plaintiff’s first and sixth causes of action, we find that defendant failed to establish, as a matter of law, that the fees charged exceeded the amount set forth in the workers’ compensation fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), and that there is a triable issue of fact with respect thereto.

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

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

Appeal from an order of the Civil Court of the City of New York, Richmond County (Mary Kim Dollard, J.), entered June 28, 2012. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that plaintiff’s cross 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 moved for summary judgment dismissing the complaint, arguing that the

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