Decided on June 1, 2018

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

Decided on June 1, 2018

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

Decided on June 1, 2018

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

Decided on June 1, 2018

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

against

TC Acupuncture, P.C., a/a/o Jims Calixte, Respondent-Appellant.

Country-Wide Ins. Co., Petitioner-Respondent,

against

New Century Acupuncture, P.C., a/a/o William Dew, Respondent-Appellant.

Country-Wide Ins. Co., Petitioner-Respondent,

against

New Century Acupuncture, P.C., a/a/o Debra Bond, Respondent-Appellant.

Country-Wide Ins. Co., Petitioner-Respondent,

against

New Century Acupuncture, P.C., a/a/o Ernig Mejia, Respondent-Appellant.

 Country-Wide Ins. Co., Petitioner-Respondent,

against

TC Acupuncture, P.C., a/a/o Johnny Sejour, Respondent-Appellant.

Country-Wide Ins. Co., Petitioner-Respondent,

against

New Century Acupuncture, P.C., a/a/o William Dew, Respondent-Appellant.

Decided on May 25, 2018

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

Law Office of Jason Tenenbaum, P.C. (Jason Tenenbaum of counsel), for appellant. Law Offices of Ilona Finkelshteyn, P.C. (Marina Josovich of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 26, 2016. The order, insofar as appealed from and as limited by the brief, granted the branches of plaintiff’s motion seeking summary judgment on the second through fourth causes of action.

ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of plaintiff’s motion seeking summary judgment on the second through fourth causes of action are denied.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as is relevant to this appeal, plaintiff moved for summary judgment on the second through fourth causes of action, and defendant opposed those branches of plaintiff’s motion on the ground that defendant had timely and properly denied the claims at issue based upon the late submission of the claim forms underlying those causes of action (see 11 NYCRR 65—2.4 [c]). By order entered January 26, 2016, insofar as appealed from, the Civil Court granted the branches of plaintiff’s motion at issue, finding that plaintiff had established that it had timely mailed its claim forms and that defendant’s affidavit did not rebut plaintiff’s prima facie case.

In support of its motion for summary judgment, plaintiff’s proof of its submission of the claim forms at issue to defendant was based upon a standard mailing practice and procedure (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In opposition, defendant demonstrated that it had received the claim forms more than 45 days after the services at issue had been rendered and that it had properly mailed (see id.) denial of claim forms within 30 days of its receipt of the claim forms, which denials were based upon the late submission of the claims.

Proof that documents are mailed in accordance with a standard mailing practice and procedure gives rise to a rebuttable presumption that the documents have been received (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Contrary to the Civil Court’s finding, by demonstrating that it had received the claim forms at issue long after plaintiff claims to have mailed them, defendant raised a triable issue of fact as to whether plaintiff’s practices and procedures resulted in the timely mailing of the claim forms to defendant (see Healing Health Prods., Inc. v New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d, Dept, 2d, 11th & 13th Jud Dists 2014]). Thus, plaintiff is not entitled to summary judgment on the second through fourth causes of action (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]).

Accordingly, the order, insofar as appealed from, is reversed and the branches of plaintiff’s motion seeking summary judgment on the second through fourth causes of action are denied.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

Gullo & Associates, LLP (Natalie Socorro of counsel), for appellant. The Rybak Firm, PLLC (Damin J. Toell of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered December 17, 2015. 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.

Contrary to defendant’s contention, the Civil Court properly determined that defendant had failed to establish the timely and proper mailing of the independent medical examination (IME) scheduling letters. Defendant’s moving papers stated that the IME scheduling letters were sent to plaintiff’s assignor at “2497 Grant Avenue, Basement, Bronx, NY 10468,” but the NF-3 form submitted by plaintiff indicated that the assignor’s address was “2307 Morris Ave, #2C, Bronx NY 10453.” A presumption of receipt arises only where there is proof of a proper mailing (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Infinity Health Prods., Ltd. v Redland Ins. Co., 39 Misc 3d 140[A], 2013 NY Slip Op 50751[U] [App Term, 2d [*2]Dept, 2d, 11th & 13th Jud Dists 2013]). To the extent that copies of the IME scheduling letters were sent to an attorney, there is nothing in the record to suggest that plaintiff’s assignor was represented by that attorney. Consequently, defendant’s moving papers failed to demonstrate that the IMEs had been properly scheduled (see Great Health Care Chiropractic, P.C. v Citiwide Auto Leasing, 43 Misc 3d 127[A], 2014 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]; Infinity Health Prods., Ltd., 39 Misc 3d 140[A], 2013 NY Slip Op 50751[U]; cf. Star Med. Servs., P.C. v Allstate Ins. Co., 11 Misc 3d 131[A], 2006 NY Slip Op 50344[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]) and, thus, that it is entitled to summary judgment dismissing the complaint.

Accordingly, the order is affirmed.

PESCE, P.J., ALIOTTA and ELLIOT, JJ., concur.

The Rybak Firm, PLLC (Damin J. Toell of counsel), for appellant. Peter C. Merani, P.C. (Eric. M. Wahrburg of counsel), for respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered December 16, 2015. 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 amounts plaintiff sought to recover, for services rendered prior to April 1, 2013, were in excess of the workers’ compensation fee schedule.

Plaintiff correctly argues that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 [*2]AD3d 1123 [2008]). As defendant did not demonstrate that it is not precluded from asserting its proffered defense (cf. 11 NYCRR 65-3.8 [g] [1] [ii]), defendant is not entitled to summary judgment dismissing the complaint.

However, contrary to plaintiff’s contention, the affidavit plaintiff submitted in support of its motion failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). As a result, plaintiff’s motion for summary judgment was properly denied.

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 ELLIOT, JJ., concur.

Decided on May 25, 2018

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