SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Richmond County (Katherine A. Levine, J.), entered November 12, 2008. The order (1) granted the branch of defendant’s motion seeking leave to renew defendant’s prior motion and, upon renewal, directed plaintiff to return monies paid to it by defendant; (2) directed plaintiff to pay half the cost of defendant’s expert witness at trial; and (3) granted the branch of defendant’s motion seeking, in effect, to vacate the portion of the prior order which, sua sponte, restored the matter to the trial calendar, and directed that plaintiff move for such relief.

ORDERED that the appeal from so much of the order as directed plaintiff to pay half the cost of defendant’s expert witness at trial is dismissed; and it is further,

ORDERED that the order, insofar as reviewed, is affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, after a judgment in favor of plaintiff was satisfied by defendant, the underlying order in favor of plaintiff, upon which the judgment was entered, and implicitly the judgment, were vacated and the action was placed on the trial calendar. Although the parties dispute the issue, court documents indicate that the action was subsequently dismissed due to plaintiff’s nonappearance. Thereafter, defendant moved, in effect, for restitution of the amounts paid to plaintiff, pursuant to CPLR 5015 (d). The Civil Court granted the motion and, sua sponte, restored the matter to the trial calendar. Subsequently, defendant moved for, among other things, leave to renew the prior motion, and, in effect, to vacate the portion of the prior order which, sua sponte, restored the motion to the trial calendar. By order entered November 12, 2008, the Civil Court again ordered restitution, directed plaintiff to pay half the cost of defendant’s expert witness at trial, and vacated the portion of the prior order which, sua sponte, restored the matter to the trial calendar, with a direction that plaintiff move to restore. The instant appeal by plaintiff ensued. The appeal from so much of the order as directed plaintiff to pay half the cost of defendant’s expert witness at trial, [*2]which relief was not sought in defendant’s motion papers, is dismissed on the ground that said portion of the order did not determine a motion made upon notice and is not appealable as of right (CCA 1702 [a] [2]; see CPLR 2211).

The remainder of the order is affirmed. Where a judgment that has already been paid in full is set aside, the party that paid the judgment may seek repayment pursuant to CPLR 5015 (d), which authorizes a court, upon motion, to direct restitution. In our view, the Civil Court providently exercised its discretion in directing such restitution. Moreover, upon a review of the record, we find that, under the circumstances presented, the Civil Court properly directed plaintiff to move to restore the matter to the trial calendar.

Steinhardt, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 07, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Kathryn E. Freed, J.), entered October 8, 2008. The order granted plaintiff’s motion for summary judgment.

ORDERED that the order is reversed without costs and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The Civil Court granted plaintiff’s motion, and this appeal by defendant ensued.

On appeal, defendant argues, as it did in the Civil Court, that the affidavit submitted by plaintiff’s billing manager in support of plaintiff’s motion for summary judgment was insufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518. We agree (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Accordingly, the order is reversed and plaintiff’s motion for summary judgment is denied.

Steinhardt, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 07, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Delores Thomas, J.), entered September 25, 2006. The order denied the petition of All For Happy Smiles Dental, P.C. to vacate a master arbitrator’s award.

ORDERED that the order is affirmed without costs.

All For Happy Smiles Dental, P.C. commenced this proceeding pursuant to CPLR 7511 to vacate a master arbitrator’s award, which had upheld the denial of its claim for reimbursement of assigned first-party no-fault benefits. The Civil Court denied the petition, and this appeal ensued.

As the pertinent facts in this case are the same as those in 563 Grand Med., P.C. v Nationwide Ins. Co. (24 Misc 3d 135[A], 2009 NY Slip Op 51493[U] [App Term, 2d, 11th & 13th Jud Dists 2009]), Avanessov v State-Wide Ins. Co. (21 Misc 3d 132[A], 2008 NY Slip Op 52131[U] [App Term, 2d & 11th Jud Dists 2008]) and SP Med., P.C. v Country-Wide Ins. Co. (20 Misc 3d 126[A], 2008 NY Slip Op 51230[U] [App Term, 2d & 11th Jud Dists 2008]), for the reasons stated in those cases, the instant order is affirmed.

Steinhardt, J.P., Pesce and Rios, JJ., concur.
Decision Date: July 07, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered September 4, 2008. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

ORDERED that the order is modified by providing that so much of defendant’s motion as sought summary judgment dismissing the complaint insofar as it sought to recover upon a claim for $139.34 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 and plaintiff cross-moved for summary judgment. According to the papers submitted by defendant in support of its motion, plaintiff, a professional corporation licensed to perform acupuncture, sought reimbursement in the sum of $139.34 for an initial acupuncture visit, a claim that defendant denied in its entirety. Plaintiff further sought reimbursement for a series of acupuncture sessions for which it had billed $90 per session. Defendant paid plaintiff for the sessions at the reduced rate of $42.84 per session, which, defendant claimed, was the amount paid to medical doctors for similar services. The Civil Court granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.

Plaintiff did not submit its claim forms in support of its cross motion for summary judgment. In light of plaintiff’s failure to submit competent evidence, plaintiff failed to establish its entitlement to summary judgment (see CPLR 3212; Midborough Acupuncture, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U] [App Term, 2d & 11th Jud Dists 2006]). Contrary to plaintiff’s contention, defendant’s submission of the claim forms in support of its own motion did not lay the requisite foundation for their admission as evidence pursuant to CPLR 4518, since an acknowledgment of receipt does not “concede the admissibility of the purported claim forms or the facts set forth therein” (see Midborough Acupuncture,P.C., 13 Misc 3d 132[A], 2006 NY Slip Op 51879[U]). Accordingly, the Civil [*2]Court properly denied plaintiff’s cross motion for summary judgment.

The affidavit submitted by defendant sufficiently established that its denial of claim forms were timely mailed in accordance with defendant’s standard office practices and procedures (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). However, defendant did not proffer sufficient evidence to warrant the dismissal of plaintiff’s claim for the initial acupuncture visit (cf. Rogy Medical, 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]).

With respect to the remaining claim forms which are the subject of this action, defendant’s claims employees established that defendant had timely paid a portion of each of the claims and that defendant had timely denied the balance allegedly due on them. This court has held, “as a matter of law, that an insurer may use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which a licensed acupuncturist is entitled to receive for such acupuncture services” (Great Wall Acupuncture, P.C. v Geico Ins. Co, 26 Misc 3d 23, 24 [App Term, 2d, 11th & 13th Jud Dists 2009]). As it is undisputed that defendant paid plaintiff based upon the workers’ compensation fee schedule for acupuncture services performed by a medical doctor, a rate higher than that established for acupuncture services performed by a chiropractor, we decline to disturb so much of the order as granted defendant summary judgment dismissing plaintiff’s complaint with respect to those claims.

We note that, despite plaintiff’s allegations, plaintiff has failed to demonstrate that the New York Workers’ Compensation fee schedules for acupuncture services performed by a medical doctor and by a chiropractor were not “prepare[d] and establish[ed]” by the Chair of the Workers’ Compensation Board (see Workers’ Compensation Law § 13; see also Insurance Department Regulations [11 NYCRR] § 68.1 [a]).

Accordingly, the order is modified by providing that so much of defendant’s motion as sought summary judgment dismissing the complaint insofar as it sought to recover upon the claim for $139.34 is denied and the order is otherwise affirmed.

Weston, J.P., Rios and Steinhardt, JJ., concur.
Decision Date: July 07, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal from an order of the District Court of Suffolk County, First District (James P. Flanagan, J.), entered July 20, 2009. The order, insofar as appealed from, upon granting defendant’s motion for reargument, denied defendant’s motion to vacate arbitration awards and granted plaintiff’s cross motion for summary judgment.

ORDERED that, on the court’s own motion, the instant action is converted to a special proceeding.

ORDERED that the order, insofar as appealed from, is affirmed without costs.

AIU Insurance Company (AIU) commenced the instant action to confirm arbitration awards issued against defendant State Farm Insurance Company (State Farm) in a mandatory inter-company arbitration proceeding (Insurance Law § 5105) brought by AIU to recover first-party no-fault benefits paid to its insureds as a result of injuries they had suffered in a multi-vehicle accident. State Farm contended that the awards were arbitrary and capricious, and sought to vacate the awards on that basis. The District Court found in favor of AIU, and this appeal by State Farm ensued.

As a preliminary matter, we note that, pursuant to CPLR 7502 (a), “[a] special proceeding shall be used to bring before a court the first application arising out of an arbitrable controversy,” and therefore the proper procedure was to commence a special proceeding, not an action, to confirm the arbitration awards pursuant to CPLR 7510 (see Scaduto v DT Indus., 266 AD2d 149 [1999]; Polednak v Country-Wide Ins. Co., 153 AD2d 930 [1989]). Consequently, on this court’s own motion, we convert the action to a special proceeding (see CPLR 103 [c]; see also Saratoga CCM, Inc. v Guarino, 21 Misc 3d 142[A], 2008 NY Slip Op 52385[U] [App Term, 2d & 11th Jud Dists 2008]). [*2]

Upon a review of the record, we find that the awards in this compulsory arbitration proceeding were supported by the evidence (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214 [1996]; Matter of State Farm Mut. Auto. Ins. Co. v Lumbermens Mut. Cas. Co., 18 AD3d 762 [2005]). The decisions by the arbitrator indicated that he had considered the evidence proffered by the parties, including the police report, as well as State Farm’s affirmative defense. Thus, it cannot be said that the awards were arbitrary and capricious or that they were unsupported by any reasonable hypothesis (see Matter of Motor Veh. Acc. Indem. Corp., 89 NY2d 214). Consequently, the District Court did not err in denying vacatur of the awards. We note that, in granting AIU’s cross motion for summary judgment, the District Court, in effect, confirmed the awards. Accordingly, the order, insofar as appealed from, is affirmed.

Tanenbaum, J.P., Molia and LaCava, JJ., concur.
Decision Date: June 11, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered May 1, 2009. The order granted defendant’s motion for summary judgment and denied plaintiff’s cross motion for summary judgment.

ORDERED that 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, and plaintiff cross-moved for summary judgment. The Civil Court granted defendant’s motion and denied plaintiff’s cross motion, finding that there was no coverage for the claims at issue because the assignor had breached a condition precedent to coverage by failing to appear for two properly scheduled examinations under oath (EUOs). Plaintiff appeals from that order, and we affirm.

On appeal, plaintiff’s only contention is that the EUO scheduling letters were “nullities” because they were sent by defendant’s counsel on behalf of defendant, not by defendant directly. Plaintiff’s argument lacks merit. The letters clearly apprised the assignor that counsel had been retained by defendant and that the letters were being sent on defendant’s behalf. Accordingly, the Civil Court properly found that the assignor had breached a condition precedent to coverage, and the order is affirmed.

We reach no other issue.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 11, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Lila Gold, J.), entered November 17, 2008, deemed from a judgment of the same court entered December 20, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the November 17, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $730.50.

ORDERED that the judgment is reversed without costs, the order granting plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion on the ground that the claim had been submitted more than 45 days after the date the services had been rendered. The Civil Court granted plaintiff’s motion, and the instant appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

A provider generally establishes its prima facie entitlement to summary judgment by proof that it submitted to the insurer a statutory claim form, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Ordinarily, a provider establishes the submission of the claim form by proof of its proper mailing, which proof gives rise to a presumption that the claim form was received by the addressee. The presumption may be created either by proof of actual mailing or by proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). [*2]

In the instant case, plaintiff’s motion for summary judgment was supported by the affidavit of plaintiff’s billing manager as well as an annexed certificate of mailing, referred to in the affidavit, which indicated that the subject claim form was mailed to a different insurer. In light of the discrepancies between the affidavit and the annexed certificate of mailing, plaintiff did not establish submission of the claim to defendant (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; see also AKS Med., P.C. v Progressive Ins. Co., 24 Misc 3d 135[A], 2009 NY Slip Op 51494[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). Consequently, plaintiff failed to establish its prima facie entitlement to summary judgment, and its motion should have been denied.

Accordingly, the judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated, and plaintiff’s motion for summary judgment is denied.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 11, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered December 17, 2008. The order denied defendant’s motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed without 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 moved for summary judgment dismissing the complaint. The Civil Court denied the motion due to the lack of specificity in the affidavit of defendant’s mail clerk regarding mailing of the denial & requests for additional verification.” The instant appeal by defendant ensued.

Contrary to the determination of the Civil Court, the affidavits of defendant’s no-fault claims examiner and mail clerk were sufficient to establish that defendant had timely mailed the additional verification requests and NF-10 denial of claim forms in that they described, in detail, based on the affiants’ personal knowledge, defendant’s standard office practice and procedure designed to ensure that said documents were mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). In regard to the two $990.48 claims for services rendered to assignor Avez, it is undisputed that plaintiff failed to respond to defendant’s verification requests. While plaintiff argues that the requests should have been sent to the referring physician, inaction was, in this case, not a proper response (see Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555 [1999]). Plaintiff should have informed defendant that the requests should be sent elsewhere. Consequently, the time in which defendant had to pay or deny the claims was tolled, and the branch of defendant’s motion seeking summary judgment dismissing the first and second causes of action, on the ground that they were premature, should have been granted (Alur Med. Supply, Inc. v Eveready Ins. Co., 24 Misc 3d 135[A], 2009 NY Slip Op 51492[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Defendant’s denial of claim form, which denied the claims pertaining to assignor Rafailova on, among other grounds, a lack of medical necessity, together with defendant’s [*2]affirmed peer review report, established, prima facie, that there was no medical necessity for the services at issue. The fact that defendant’s peer reviewer considered medical records from plaintiff, as well as from other providers who treated the assignor, in forming his opinion as to the medical necessity of the relevant services, does not warrant a contrary result. Plaintiff may not challenge the reliability of its own medical records (see PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 142[A], 2009 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Cross Cont. Med., P.C. v Allstate Ins. Co., 13 Misc 3d 10 [App Term, 1st Dept 2006]). With respect to the medical records of other providers who had rendered treatment to this assignor, it is noted the plaintiff stands in the shoes of its assignor and acquires no greater rights than its assignor (see Zeldin v Interboro Mut. Indem. Ins. Co., 44 AD3d 652 [2007]; Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763 [2007]; West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d & 11th Jud Dists 2006]; see generally East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 210 [2009] [ in some instances, (the) regulations use the term applicant’ as a generic reference to both provider/assignees and injured persons”]). As a result, plaintiff’s contention that defendant must consider plaintiff’s bills in a vacuum and ignore medical records which defendant received either from the assignor or from another provider who had submitted such records on behalf of the assignor, lacks merit.

Moreover, we note that, while defendant’s peer review doctor may have considered medical records received from other providers who had rendered treatment to the assignor, defendant was not seeking to use such records to establish the truth of the facts set forth therein. Defendant was not attempting to prove that Rafailova was injured as documented in her medical records, or that she was treated as set forth in those records. Instead, defendant’s peer review doctor simply opined that, assuming the facts set forth in Rafailova’s records were true, the treatment allegedly provided was not medically necessary. Therefore, as defendant was not using the underlying medical records for their truth, such records were not being used for a hearsay purpose (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is distinguishable from a situation in which a medical expert relies upon medical records to establish the fact of an injury (see e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]). Consequently, plaintiff’s argument that defendant failed to establish the reliability of the underlying medical records in support of its claim that the treatment provided was not medically necessary is irrelevant.

Furthermore, plaintiff did not demonstrate that it needed the records from the other providers in order to raise a triable issue of fact as to whether the services at issue were medically necessary when they were rendered (see CPLR 3212 [f]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and that it had served discovery demands during the ample opportunity that it had to commence discovery proceedings to obtain such records before the instant summary judgment motion was brought (see Meath v Mishrick, 68 NY2d 992 [1986]). Consequently, plaintiff failed to establish a basis to defeat defendant’s motion for summary judgment. In view of the foregoing, and as plaintiff’s remaining contentions lack merit or are unpreserved for appellate review, the branch of defendant’s motion seeking summary judgment dismissing the [*3]third and fourth causes of action should also have been granted (see PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d at 142[A] 2009 NY Slip Op 50491[U]).

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

Steinhardt, J.P., Pesce and Rios, JJ., concur.
Decision Date: June 08, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Lisa S. Ottley, J.), entered April 13, 2009. The order granted defendant’s motion for summary judgment dismissing the complaint.

ORDERED that 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 the supplies provided to plaintiff’s assignor were not medically necessary. The Civil Court granted the motion, finding that plaintiff’s opposition papers failed to rebut defendant’s showing that the supplies provided were not medically necessary. The instant appeal by plaintiff ensued.

Defendant made a prima facie showing of its entitlement to summary judgment dismissing the complaint by establishing the timely mailing of the claim denial form (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) and by submitting an affirmed peer review report of its doctor, which set forth a factual basis and medical rationale for his conclusion that there was a lack of medical necessity for the supplies provided (see 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]).

Although plaintiff stated that it was not in possession of all the information and documents relied upon by defendant’s peer reviewer, and that said documents were needed in order to oppose defendant’s motion (see CPLR 3212 [f]), plaintiff, in this case, “failed to demonstrate that discovery was needed in order to show the existence of a triable issue of fact” (Delta Diagnostic Radiology, P.C. v Interboro Ins. Co., 25 Misc 3d 134[A], 2009 NY Slip Op 52222[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Corwin v Heart Share Human Servs. of NY, 66 AD3d 814 [2009]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

As plaintiff failed to rebut defendant’s prima facie showing, defendant’s motion for [*2]summary judgment dismissing the complaint was properly 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]). Accordingly, the order is affirmed.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 04, 2010

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered November 5, 2008. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is reversed without costs 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, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied both motions. Defendant appeals from so much of the order as denied its cross motion for summary judgment dismissing the complaint.

Defendant established that it had timely mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; 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 forms, which denied the claims at issue on the ground of lack of medical necessity. In support of its cross motion for summary judgment, defendant also submitted, among other things, an affidavit from its peer review chiropractor and a peer review report, which set forth a factual basis and medical rationale for the conclusion that there was a lack of medical necessity for the services at issue (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]). Defendant’s showing that the services were not medically necessary was unrebutted by plaintiff. Consequently, defendant established its prima facie entitlement to summary judgment and plaintiff failed to raise a triable issue of fact.
Accordingly, defendant’s cross motion for summary judgment dismissing the complaint should have been granted.

Pesce, P.J., Weston and Golia, JJ., concur.
Decision Date: June 04, 2010