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 (Peter Paul Sweeney, J.), entered September 28, 2007. The order denied plaintiff’s motion for summary judgment.

ORDERED that the order is affirmed without costs.

In this action by a provider to recover first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation of plaintiff’s counsel, an “affidavit” by plaintiff’s owner which was unsigned, and various documents annexed thereto. In opposition to plaintiff’s motion, defendant asserted that the “affidavit” of plaintiff’s owner was insufficient to establish plaintiff’s prima facie case. The Civil Court denied plaintiff’s motion on the ground that plaintiff had failed to submit an affidavit bearing the signature of the purported affiant. This appeal by plaintiff ensued.

Since the “affidavit” was not signed by the purported affiant, it did not constitute evidence in admissible form (see Hargrove v Baltic Estates, 278 AD2d 278 [2000]; Huntington Crescent Country Club v M & M Auto & Mar. Upholstery, 256 AD2d 551 [1998]; New Dorp Ch. 2712 of AARP, Inc. v A.A.W. Travel, Inc., 22 Misc 3d 141[A], 2009 NY Slip Op 50442[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Comprehensive Mental Assessment & Med. Care v Merchants & Businessmen’s Mut. Ins. Co., 196 Misc 2d 134 [2003]). As the affirmation of plaintiff’s counsel was insufficient to establish plaintiff’s prima facie case (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]), plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: January 29, 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 Nassau County, Third District (Michael A. Ciaffa, J.), dated April 8, 2009. The order, insofar as appealed from as limited by the brief, denied plaintiffs’ motion for partial summary judgment and granted defendant’s cross motion for summary judgment dismissing various claims of plaintiffs on the ground of lack of medical necessity.

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

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for “partial summary judgment,” asserting that, pursuant to CPLR 3212
(e) or, in the alternative, CPLR 3212 (g), the District Court should determine that
plaintiffs had established their prima facie case. Insofar as is relevant to this appeal, defendant cross-moved for summary judgment dismissing various claims of plaintiffs on the ground of lack of medical necessity. Plaintiffs appeal, as limited by their brief, from so much of the order as denied their motion for partial summary judgment and granted defendant’s cross motion for summary judgment dismissing various claims of plaintiffs on the ground of lack of medical necessity.

In support of defendant’s cross motion for summary judgment, defendant annexed, among other things, an affirmed peer review report by a doctor, an affirmation by a doctor who had performed an independent medical examination and an affidavit by a chiropractor who had performed an independent medical examination. Since the foregoing documents set forth a factual basis and medical rationale for the doctors’ and chiropractor’s opinions that the services, [*2]which are the subject of the claims at issue, were not medically necessary, defendant established, prima facie, a lack of medical necessity for such services (see Exclusive Med. Supply, Inc. v Mercury Ins. Group, 25 Misc 3d 136[A], 2009 NY Slip Op 52273[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; 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]).

In opposition to the cross motion, plaintiffs submitted an affirmation from the doctor who had treated plaintiffs’ assignor, which affirmation was apparently missing at least one page. The portion of the affirmation which was contained in the record was insufficient to raise a triable issue of fact as it did not meaningfully refer to, or discuss, the determination of defendant’s doctors and chiropractor (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]). As a result, defendant’s cross motion, insofar as it sought to dismiss various claims of plaintiffs on the ground of lack of medical necessity, was properly granted (see Exclusive Med. Supply, Inc., 25 Misc 3d 136[A], 2009 NY Slip Op 52273[U]; Delta Diagnostic Radiology, P.C., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U]; Pan Chiropractic, P.C., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U]). Accordingly, the order, insofar as appealed from, is affirmed. We reach no other issue.

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: January 28, 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 Nassau County, Third District (Fred J. Hirsh, J.), dated March 30, 2009. The order, insofar as appealed from as limited by the brief, denied plaintiffs’ motion for partial summary judgment.

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

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for “partial summary judgment” pursuant to CPLR 3212 (e) or, in the alternative, CPLR 3212 (g). Defendant cross-moved for summary judgment dismissing the complaint. The court denied plaintiffs’ motion and held defendant’s cross motion in abeyance. Plaintiffs appeal, as limited by their brief, from so much of the order as denied their motion for “partial summary judgment.”

For the reasons stated in B.Y., M.D., P.C., JR Chiropractic, P.C., Oasis Physical Therapy, P.C. and Olga Bard Acupuncture, P.C. a/a/o Beverly Prince v Government Empls. Ins. Co. (___ Misc 3d ___, 2009 NY Slip Op _____ [Appeal No. 2009-943 N C], decided herewith), the order, insofar as appealed from, is affirmed.

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.
Decision Date: January 28, 2010

[*1]

Supreme Court, Appellate Term, Second Department, January 28, 2010

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellants. Law Offices of Teresa M. Spina, Woodbury (Emilio A. Cacace of counsel), for respondent.

{**26 Misc 3d at 96} OPINION OF THE COURT

Memorandum.

Ordered that the order is affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, plaintiffs moved for “partial summary judgment,” asserting that, pursuant to CPLR 3212 (e) or, in the alternative, CPLR 3212 (g), the District Court should determine that plaintiffs had established their prima facie case with respect to their first cause of action. In opposition to the motion, defendant argued, among other things, that there was a lack of medical necessity for the services at issue. The District Court denied plaintiffs’ motion, and this appeal by plaintiffs ensued.

Plaintiffs’ contention that, pursuant to either CPLR 3212 (e) or, in the alternative, CPLR 3212 (g), they were entitled to “partial summary judgment” determining that they had established their prima facie case with respect to their first cause of action lacks merit. The branch of plaintiffs’ motion seeking “partial summary judgment” pursuant to CPLR 3212 (e) was properly denied as the relief requested would not conclusively dispose of the merits of plaintiffs’ first cause of action or even a part of that cause of action (see CPLR 3212 [e]).

Similarly, relief pursuant to CPLR 3212 (g) is not available to plaintiffs. This provision states that “[i]f a motion for summary judgment is denied or is granted in part, the court, by examining the papers before it and, in the discretion of the court, by interrogating counsel, shall, if practicable, ascertain what facts are not in dispute or are incontrovertible.” As the court did [*2]not deny, or grant in part, a motion which sought summary judgment conclusively disposing of the merits of plaintiffs’ cause of action, plaintiffs’ motion seeking a limitation of issues of fact for trial pursuant to CPLR 3212 (g) was properly denied (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3212:35; see generally E.B. Metal & Rubber Indus. v County of Washington, 102 AD2d 599 [1984]). Accordingly, the order is affirmed.{**26 Misc 3d at 97}

Nicolai, P.J., Tanenbaum and LaCava, JJ., concur.

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 (George J. Silver, J.), entered September 11, 2008. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment.

ORDERED that the appeal is stricken from the general calendar.

In this action to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment. While said motions were pending in the Civil Court, the Supreme Court, Queens County (James J. Golia, J.), in a declaratory judgment action brought by the instant defendant against, among others, the instant plaintiff and plaintiff’s assignor, issued a preliminary injunction staying “all pending and future actions” in “New York Civil and District Courts” involving, inter alia, said plaintiff and assignor. Thereafter, the Civil Court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint. This appeal by defendant ensued. In light of the preliminary injunction issued by the Supreme Court, the parties herein were foreclosed from proceeding any further in this action. Accordingly, the appeal could not properly be perfected and must be stricken from the general calendar.

Rios, J.P., and Pesce J., concur.

Golia, J., taking no part. [*2]
Decision Date: January 22, 2010

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered October 16, 2008, which denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Raul Cruz, J.), entered October 16, 2008, reversed, without costs, motion granted and complaint dismissed on the condition that defendant, within 60 days of service upon it of a copy of this order with notice of entry, files with the Clerk of the Civil Court and serves upon plaintiffs an affidavit of Steven Esteves that is accompanied by a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of New Jersey. In the event defendant fails to duly file and serve such an affidavit, the order is affirmed, without costs.

The affidavit submitted by defendant of its employee (Esteves) established defendant’s entitlement to summary judgment dismissing this action to recover first-party no-fault benefits. Plaintiffs, however, raised a timely objection to the form of this affidavit, asserting that it did not comply with CPLR 2309(c). Specifically, plaintiffs correctly note that the affidavit failed to include a certificate demonstrating that the notary administered the oath as prescribed by the laws of the State of New Jersey, the state in which the oath was administered (see CPLR 2309[c]; Real Property Law § 299-a[1]; PRA III, LLC v Gonzalez, 54 AD3d 917 [2008]). Inasmuch as the document can be given nunc pro tunc effect once the appropriate certificate is obtained (Nandy v Albany Med. Ctr. Hosp., 155 AD2d 833, 834 [1989]; see Moccia v. Carrier Car Rental, Inc., 40 AD3d 504, 505 [2008]; see also Matapos Tech. Ltd. v Compania Andina de Comercio Ltda, ___AD3d___, 2009 NY Slip Op. 09713 [Dec. 29, 2009]), we reverse the order and grant defendant’s motion for summary judgment dismissing the complaint on the conditions stated above (cf. Sandoro v Andzel, 307 AD2d 706, 708-708 [2003]).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur [*2]
Decision Date: January 14, 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 August 8, 2008, deemed in part from a judgment of said court entered November 13, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to so much of the August 8, 2008 order as granted plaintiff’s motion for summary judgment to the extent of awarding plaintiff summary judgment upon its fourth through tenth causes of action and denied so much of defendant’s cross motion as sought summary judgment dismissing said causes of action, awarded plaintiff the principal sum of $1,113.03. The order, insofar as appealed from, denied so much of defendant’s cross motion as sought summary judgment dismissing plaintiff’s first, second and third causes of action.

ORDERED that the judgment is affirmed without costs; and it is further,

ORDERED that the order, insofar as appealed from, is modified by providing that so much of defendant’s cross motion as sought summary judgment dismissing plaintiff’s second and third causes of action is granted; 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, the Civil Court granted plaintiff’s motion for summary judgment to the extent of awarding plaintiff summary judgment upon its fourth through tenth causes of action, and denied defendant’s cross motion for summary judgment dismissing the complaint. The instant appeal by defendant ensued. A judgment was subsequently entered awarding plaintiff the principal sum of $1,113.03 on its fourth through tenth causes of action.

Contrary to defendant’s contention, the affidavit of plaintiff’s billing manager established [*2]the mailing of the claims in question since he stated that he had personally mailed the claims (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; cf. New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). In addition, a review of the record indicates that plaintiff’s affidavit sufficed to establish that the annexed claim forms constituted evidence in admissible form (see CPLR 4518; 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]). Thus, insofar as is relevant to this appeal by defendant, plaintiff made out its prima facie entitlement to summary judgment.

While defendant argues that plaintiff was not entitled to summary judgment upon its fourth through tenth causes of action and that defendant was entitled to summary judgment dismissing said causes of action because defendant had timely denied the underlying claims based on the assignor’s failure to appear for independent medical examinations, defendant’s motion papers failed to establish that the assignor failed to appear for such examinations (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]). Consequently, defendant failed to demonstrate its entitlement to judgment upon said causes of action or even to raise a triable issue of fact with respect thereto. Accordingly, plaintiff was entitled to summary judgment upon these causes of action (id.).

In support of the branches of its cross motion seeking summary judgment dismissing plaintiff’s second and third causes of action, defendant established that the claims at issue in said causes of action were timely denied on the ground of lack of medical necessity based upon an affirmed peer review report which set forth a factual basis and medical rationale for the doctor’s opinion that there was a lack of medical necessity for such medical services (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). In view of the foregoing, defendant made a prima facie showing of its entitlement to summary judgment dismissing said causes of action, and the burden shifted to plaintiff to demonstrate the existence of a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557 [1980]). Since plaintiff failed to do so, defendant was entitled to summary judgment dismissing plaintiff’s second and third causes of action (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]).

Defendant also contends that the Civil Court should have granted it summary judgment dismissing plaintiff’s first cause of action because defendant established that it had timely denied the claim on the ground that the fees charged were excessive and not in accordance with the workers’ compensation fee schedule. While defendant is not precluded from asserting said defense (cf. Westchester Med. Ctr. v American Tr. Ins. Co., 17 AD3d 581 [2005]), defendant failed to establish that the fees charged were in fact excessive. As a result, defendant is not entitled to summary judgment dismissing plaintiff’s first cause of action.

Accordingly, the judgment in favor of plaintiff is affirmed and the order, insofar as appealed from, is modified by providing that defendant’s cross motion for summary
judgment dismissing the complaint is granted to the extent of dismissing plaintiff’s second and third causes of action.

Golia, J.P., Pesce and Weston, JJ., concur.
Decision Date: January 12, 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 October 7, 2008, deemed from a judgment of the same court entered November 5, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the October 7, 2008 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $656.91.

ORDERED that the judgment is reversed without costs, the order entered October 7, 2008 is vacated, plaintiff’s motion for summary judgment is denied and, upon searching the record, summary judgment is granted to defendant dismissing the complaint.

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 it had properly reimbursed plaintiff for licensed acupuncture services at the rate consistent with the amount paid for acupuncture services provided by licensed chiropractors. The Civil Court granted plaintiff’s motion, holding that defendant had failed to demonstrate that it had issued timely denials of the claims. This appeal by defendant ensued. A judgment was subsequently entered, from which the appeal is deemed to be taken (see CPLR 5501 [c]).

On appeal, defendant’s sole contention with respect to plaintiff’s prima facie case is that the affidavit of plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s motion for summary judgment were admissible as business records. Upon our review of the record, we find that the affidavit was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (see Art of Healing Medicine, P.C. v Travelers Home & Mar. Ins. Co., 55 AD3d 644 [2008]; Dan Med., P.C. v New York [*2]Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Defendant established through the affidavit of its claims division employee that it had timely mailed the denial of claim forms to plaintiff, by setting forth the office practices or procedures used to ensure that such 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, 18 [App Term, 2d & 11th Jud Dists 2007]).

For the reasons stated in Great Wall Acupuncture, P.C. v GEICO Ins. Co. (___ Misc 3d ___, 2009 NY Slip Op 29467 [App Term, 2d, 11th & 13th Jud Dists 2009]), it was proper for defendant to use the workers’ compensation fee schedule for acupuncture services performed by chiropractors to determine the amount which plaintiff was entitled to receive for the acupuncture services rendered by its licensed acupuncturist. Furthermore, since it is undisputed that defendant has fully paid plaintiff the amount to which plaintiff is entitled under the workers’ compensation fee schedule for acupuncture services performed by chiropractors, it is appropriate for this court to search the record and grant summary judgment to defendant dismissing the action (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]; AVA Acupuncture, P.C. v GEICO Gen. Ins. Co., 17 Misc 3d 41, 43 [App Term, 2d & 11th Jud Dists 2007]).

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: January 12, 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 September 22, 2008, deemed from a judgment of the same court entered November 5, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the September 22, 2008 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 $292.94.

ORDERED that the judgment is reversed without costs, the order entered September 22, 2008 is vacated, plaintiff’s motion for summary judgment is denied and
defendant’s cross motion for summary judgment dismissing the complaint is granted, without prejudice to plaintiff commencing a new action.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that the action was premature, because it had been commenced before defendant had received responses to its outstanding verification requests. By order entered September 22, 2008, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion. Defendant’s appeal from said order is deemed to be from the judgment which was subsequently entered pursuant thereto (see CPLR 5501 [c]).

On appeal, defendant’s sole contention with respect to plaintiff’s prima facie case is that the affidavit of plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s motion for summary judgment were admissible as business records. Upon our review of the record, we find that the affidavit was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (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]). Contrary to the finding of the Civil Court, the affidavit of defendant’s claim representative sufficiently established that defendant had timely mailed its request and follow-up request for verification to plaintiff (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, 18 [App Term, 2d & 11th Jud Dists 2007]). Since plaintiff did not demonstrate that it had provided defendant, prior to the [*2]commencement of the action, with the verification, the 30-day period within which defendant was required to pay or deny the claims did not commence to run (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [a] [1]; 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]; Vista Surgical Supplies, Inc. v General Assur. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51034[U] [App Term, 2d & 11th Jud Dists 2006]). Thus, plaintiff’s action is premature (Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]).

Accordingly, the judgment is reversed, the order entered September 22, 2008 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted, without prejudice to plaintiff commencing a new action.

Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: January 12, 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 October 8, 2008. The order, insofar as appealed from as limited by the brief, granted the branches of plaintiff’s motion seeking summary judgment with respect to plaintiff’s second and third causes of action. The appeal is deemed to be from a judgment of the same court entered November 5, 2008 which awarded plaintiff the principal sum of $708.37 (see CPLR 5501 [c]).

ORDERED that the judgment is reversed without costs, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s
second and third causes of action is vacated, the branches of plaintiff’s motion seeking summary judgment upon said causes of action are denied and the matter is remitted to the Civil Court for all further proceedings.

In this action by a provider 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 granted the branches of plaintiff’s motion seeking summary judgment on plaintiff’s second and third causes of action. The appeal is deemed to be from the judgment which was subsequently entered (see CPLR 5501 [c]).

On appeal, defendant’s sole contention with respect to plaintiff’s prima facie case is that the affidavit of plaintiff’s billing manager failed to establish that the documents annexed to plaintiff’s motion for summary judgment were admissible as business records. Upon our review of the record, we find that the affidavit was sufficient to establish that the documents annexed to plaintiff’s moving papers were admissible pursuant to CPLR 4518 (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]).

Contrary to the finding of the Civil Court, the affidavit of defendant’s claims representative sufficiently established the timely mailing of the denial of claim forms, which denied plaintiff’s claims on the grounds that the supplies provided were medically unnecessary and that the fees charged by plaintiff were excessive (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 opposition to the branch of plaintiff’s [*2]motion for summary judgment upon plaintiff’s second cause of action, defendant raised a triable issue of fact by annexing an affirmed peer review report which set forth a factual basis and medical rationale for the doctor’s opinion that the medical supplies at issue in said cause of action were not medically necessary (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Amaze Med. Supply Inc. v Allstate Ins. Co., 12 Misc 3d 142[A], 2006 NY Slip Op 51412[U] [App Term, 2d & 11th Jud Dists 2006]). In addition, in opposition to the branch of plaintiff’s motion seeking summary judgment upon plaintiff’s third cause of action, defendant established that there was an issue of fact as to whether the fees charged by plaintiff were excessive.

Accordingly, the judgment is reversed, so much of the order as granted the branches of plaintiff’s motion seeking summary judgment upon plaintiff’s second and third causes of action is vacated, the branches of plaintiff’s motion seeking summary judgment upon said causes of action are denied and the matter is remitted to the Civil Court for all further proceedings.
Weston, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: January 12, 2010