Appeal from an order of the Civil Court of the City of New York, Kings County (Carolyn E. Wade, J.), entered March 14, 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 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 on the ground that the supplies at issue were not medically necessary.

Defendant’s papers established that it had timely denied the claims 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. 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.

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered March 22, 2012. The order, insofar as appealed from, made, in effect, CPLR 3212 (g) findings in plaintiff’s favor, denied defendant’s motion for summary judgment dismissing the complaint and limited the issue for trial to medical necessity.

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 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. The Civil Court denied defendant’s motion and limited the issue for trial to 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 services at issue (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

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

Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 16, 2011, deemed from a judgment of the same court entered February 17, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 16, 2011 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,087.90.

ORDERED that the judgment is reversed, with $30 costs, the order entered December 16, 2011 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross 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 granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

The affidavit of defendant’s no-fault claims examiner established that defendant had timely mailed its verification request and follow-up verification requests (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 all of the verification requested, and, in opposition to defendant’s cross motion, plaintiff did not show that such verification had been provided to defendant prior to the commencement of this action. Consequently, the 30-day period within which defendant was required to pay or deny the claims at issue 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 judgment is reversed, the order entered December 16, 2011 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross 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 (Dawn Jimenez Salta, J.), entered March 29, 2012. The order, insofar as appealed from and as limited by the brief, denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for services rendered by plaintiff Arco Medical NY, P.C. on April 11, 2008.

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

In this action by providers to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much of an order of the Civil Court as denied the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for services rendered by plaintiff Arco Medical NY, P.C. on April 11, 2008.

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.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 20, 2011. 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 defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim which had been denied based on a lack of medical necessity 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.

Contrary to plaintiff’s contentions on appeal regarding the claims which had been denied based upon the workers’ compensation fee schedule, defendant adequately demonstrated that it had fully paid plaintiff for those services 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]), and plaintiff failed to raise a triable issue of fact in response.

With respect to the remaining claim, which had been denied based upon a lack of medical necessity, we find that there is a triable issue of fact as to the medical necessity of the services rendered (see Zuckerman v City of New York, 49 NY2d 557 [1980]), and that therefore defendant was not entitled to summary judgment dismissing this claim.

Accordingly, the order is modified by providing that the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim which had been denied based on a lack of medical necessity 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 (Joseph E. Capella, J.), entered March 9, 2012, deemed from a judgment of the same court entered March 15, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the March 9, 2012 order granting defendant’s motion for summary judgment, dismissed the complaint.

ORDERED that the judgment is affirmed, with $25 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 plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). Plaintiff appeals from an order of the Civil Court granting defendant’s motion. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

On appeal, plaintiff contends that the EUO scheduling letters were defective because they did not adequately advise plaintiff as to why the EUO was being requested. However, since plaintiff does not claim to have responded in any way to the EUO requests, its objections regarding the EUO requests will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]). In any event, plaintiff’s contention lacks merit since the EUO scheduling letters advised that the EUO would concern, among other things, plaintiff’s eligibility to be reimbursed for assigned no-fault benefits (see also 2006 Ops Ins Dept No. 06-12-16 [http://www.dfs.ny.gov/insurance/ogco2006/rg061216.htm]).

Plaintiff’s remaining contentions are improperly raised for the first time on appeal and, therefore, are not properly before this court (see NYU Hosp. for Joint Diseases v Country Wide Ins. Co., 84 AD3d 1043 [2011]; Matter of Panetta v Carroll, 62 AD3d 1010 [2009]; KPSD Mineola, Inc. v Jahn, 57 AD3d 853, 854 [2008]).

Accordingly, the judgment is affirmed.

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

Appeal from an order of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered September 16, 2011, deemed from a judgment of the same court entered March 8, 2012 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 16, 2011 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $1,626.53.

ORDERED that the judgment is reversed, with $30 costs, the order entered September 16, 2011 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross 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 granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. A judgment was subsequently entered, from which the appeal is deemed to have been taken (see CPLR 5501 [c]).

In opposition to plaintiff’s motion for summary judgment, and in support of its cross motion for summary judgment dismissing the complaint, defendant established that its time to pay or deny plaintiff’s claim had been tolled by the timely mailing of examination under oath (EUO) scheduling letters (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]), that plaintiff’s assignor had failed to appear for either of the properly scheduled EUOs, and that the claim had been timely and properly denied on that ground (see id.; 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]). Furthermore, since plaintiff does not claim that its assignor objected to the reasonableness of the EUO requests, its objections regarding the requests will not now be heard (see Viviane Etienne Med. Care, P.C. v State Farm Mut. Auto. Ins. Co., 35 Misc 3d 127[A], 2012 NY Slip Op 50579[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; Crescent Radiology, PLLC v American Tr. Ins. Co., 31 Misc 3d 134[A], 2011 NY Slip Op 50622[U] [App Term, 9th & 10th Jud Dists 2011]). An assignor’s appearance at an EUO is a condition precedent to the insurer’s liability on the policy (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]).

Accordingly, the judgment is reversed, the order entered September 16, 2011 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.

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 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 action is premature because plaintiff had not provided verification as requested by defendant, and plaintiff cross-moved for summary judgment. The Civil Court denied defendant’s motion and granted plaintiff’s cross motion.

Since a claim need not be paid or denied until all demanded verification is provided (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554 [1999]), any action to recover payment is premature when the provider has failed to respond to a request for verification (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]). In support of its motion, defendant demonstrated it had timely mailed initial and follow-up requests for verification (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 the record before us, we find that there is a triable issue of fact as to whether plaintiff adequately responded to those verification requests.

Accordingly, the order is modified by providing that plaintiff’s cross 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 (Anna Culley, J.), entered January 18, 2012. The order, insofar as appealed from, granted the branch of plaintiff’s motion seeking summary judgment on the fourth cause of action and denied defendant’s cross motion for summary judgment dismissing the complaint. So much of the appeal as is from the portion of the order which granted the branch of plaintiff’s motion seeking summary judgment on the fourth cause of action and denied the branch of defendant’s cross motion seeking summary judgment dismissing that cause of action is deemed to be an appeal from a judgment of the same court entered February 14, 2012, awarding plaintiff the principal sum of $2,357.95 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed, without costs, so much of the order entered January 18, 2012 as granted the branch of plaintiff’s motion seeking summary judgment on the fourth cause of action is vacated and that branch of plaintiff’s motion is denied; and it is further,

ORDERED that the order, insofar as reviewed on direct appeal and 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. By order entered January 18, 2012, the Civil Court denied defendant’s cross motion, granted the branch of plaintiff’s motion seeking summary judgment on the fourth cause of action and otherwise denied plaintiff’s motion. A judgment was subsequently entered on February 14, 2012, awarding plaintiff the principal sum of $2,357.95. On appeal, defendant argues that its cross motion for summary judgment dismissing the complaint should have been granted and that, in any event, the branch of plaintiff’s motion seeking summary judgment on the fourth cause of action should have been denied.

Defendant argued in its cross motion that this action was premature because plaintiff had failed to comply with its verification requests. Inasmuch as a triable issue of fact exists as to whether plaintiff’s responses to the verification requests were sufficient, the Civil Court properly denied defendant’s cross motion, and it should have denied the branch of plaintiff’s motion seeking summary judgment on the fourth cause of action.

Accordingly, the judgment is reversed, so much of the order entered January 18, 2012 as granted the branch of plaintiff’s motion seeking summary judgment on the fourth cause of action [*2]is vacated and that branch of plaintiff’s motion is denied. The order, insofar as reviewed on direct appeal and insofar as appealed from, is affirmed.

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