SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Kevin Kerrigan, J.), entered March 6, 2006, deemed an appeal from the judgment entered on May 3, 2006 (see CPLR 5501 [c]) . The judgment, entered pursuant to the March 6, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $1,696.41.

Judgment reversed without costs, so much of the order entered March 6, 2006 as granted plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was granted and a judgment was entered pursuant thereto. The sole issue raised on appeal is whether defendant proffered sufficient evidence to demonstrate that there was an issue of fact as to whether the injuries plaintiff’s assignor allegedly sustained arose from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Upon a review of the record, we find that the affidavit submitted by defendant’s investigator was sufficient to demonstrate a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (id. at 199). Since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, supra; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff was not entitled to summary judgment. Accordingly, the judgment in favor of plaintiff is reversed, the order, insofar as it granted plaintiff’s motion for summary judgment, is vacated and plaintiff’s motion for summary judgment is denied.

Weston Patterson, J.P., Golia and Belen, JJ., concur. [*2]
Decision Date: November 21, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Richmond County (Peter Paul Sweeney, J.), entered April 20, 2006, deemed an appeal from a judgment entered May 5, 2006 (CPLR 5520 [c]). The judgment, entered pursuant to the April 20, 2006 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment, awarded plaintiff the principal sum of $3,600.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant cross-moved for summary judgment on the ground that prior to the commencement of the subject action, a related no-fault
matter arising out of the same accident was submitted to arbitration. Defendant contended that the election to arbitrate precluded this action (see Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260 [1985]). The court granted plaintiff’s motion for summary judgment and denied defendant’s cross motion. A judgment was subsequently entered.

Upon a review of the record, we find that defendant failed to establish that the instant action was barred. Defendant did not offer evidence to support its contention that there was a prior election by plaintiff to arbitrate a claim for no-fault benefits pertaining to plaintiff’s assignor for injuries allegedly sustained in the accident which gave rise to the claims at issue herein. [*2]

A provider generally establishes its prima facie entitlement to summary judgment by proof that it submitted the claim forms, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff’s
establishment of its prima facie case, this court need not pass on the propriety of the implicit determination of the court below with respect thereto. The burden, therefore,
shifted to defendant to demonstrate the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).

In opposition to plaintiff’s motion for summary judgment, defendant asserted that the amount sought by plaintiff exceeded the amount set forth in the applicable fee schedule and that it timely denied plaintiff’s claims on the ground of lack of medical necessity (11 NYCRR 65-3.8 [c]). However, defendant failed to establish that the denials were timely mailed since the affidavit of defendant’s representative did not state that he personally mailed the denials or set forth defendant’s standard office practice or procedure designed to ensure that items are properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Moreover, contrary to the dissent, we find no concession by plaintiff in its submissions as to the timeliness of the denials.

Since defendant failed to establish that the claims were denied within the 30-day prescribed period (11 NYCRR 65-3.8 [c]), defendant is precluded from raising most defenses (see Presbyterian Hosp. in City of N. Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]) including its proffered defenses of lack of medical necessity and that the
fees charged were excessive (see Benson Med., P.C. v Progressive Northeastern Ins.
Co., 12 Misc 3d 144[A], 2006 NY Slip Op 51427[U] [App Term, 2d & 11th Jud Dists]). Consequently, the judgment is affirmed.

Pesce, P.J., and Belen, J., concur.

Weston Patterson, J., dissents in a separate memorandum.

Weston Patterson, J., dissents and votes to reverse the judgment, vacate so much of the order as granted plaintiff’s motion for summary judgment and deny plaintiff’s motion for summary judgment.

I disagree with the majority opinion and vote to reverse the judgment and vacate the part of the order which grants plaintiff’s motion for summary judgment on the ground that defendant has rebutted the prima facie showing of plaintiff. Lack of medical necessity is a defense to an action for recovery of no-fault benefits, and may be asserted by the insurer provided that there has been a timely denial of the claim (see generally Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). It is undisputed that defendant issued timely denials as evidenced by the denial of claim forms which were submitted as part of plaintiff’s moving papers (see generally [*3]A.B. Med. Servs. PLLC v. Electric Ins. Co., 7 Misc 3d 130[A], 2005 NY Slip Op 50542[U] [App Term, 2d & 11th Jud Dists]). Indeed, plaintiff concedes timeliness by its submissions and does not raise the issue either below or on appeal. Thus, the question presented here is not the sufficiency of the affidavit of mailing.

Rather, plaintiff moves for summary judgment solely on the grounds that defendant unreasonably denied the claims. Inasmuch as it is undisputed that defendant’s denials of benefits were timely made within the prescribed statutory period, and the defense of lack of medical necessity having been sufficiently asserted through submissions in admissible form to rebut the prima facie showing (see Liberty Queens Med., P.C. v Liberty Mutual Insurance Co., 2002 NY Slip Op 40420[U] [App Term, 2d & 11th Jud Dists]), plaintiff’s motion for summary judgment should not have been granted.

However, I am in agreement with the majority’s opinion that defendant’s cross motion for summary judgment was properly denied. Defendant failed to submit any admissible proof to establish that this action was barred.
Decision Date: November 21, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Arthur F. Engoron, J.), entered June 30, 2006. The order, insofar as appealed from, upon finding for all purposes pursuant to CPLR 3212 (g) that plaintiff established a prima facie case, denied plaintiff’s motion for summary judgment on the ground that triable issues of fact exist.

Order, insofar as appealed from, reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment on the ground that defendant’s defenses were precluded by a defective denial of claim form. Defendant did not oppose the motion. The court granted plaintiff’s unopposed motion to the extent of holding that plaintiff made a prima facie showing for all purposes pursuant to CPLR 3212 (g), but the court nevertheless found that defendant’s denial of claim form raised triable issues of fact. This appeal by plaintiff ensued.

Since defendant raised no issue in the court below or on appeal concerning plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the court’s determination with respect thereto. Consequently, having found that plaintiff made a prima facie showing, since defendant did not submit any opposition, plaintiff’s motion for summary judgment should have been granted (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

In view of the foregoing, plaintiff’s motion for summary judgment is granted, and the matter is remanded to the court below for the calculation of statutory interest and an
assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations [*2]promulgated thereunder.

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: November 20, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), entered August 24, 2006. The order denied plaintiff’s motion for summary judgment.

Order affirmed with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by an officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In
opposition, defendant argued, inter alia, that the affidavit by plaintiff’s officer failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case.

Since the affidavit submitted by plaintiff’s officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures, so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied. [*2]

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: November 20, 2007

—[*1] Jaffe & Koumourdas, New York, N.Y. (Jean H. Kang of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y., for respondent.

In an action to recover no-fault medical payments, the defendant appeals from a judgment of the Supreme Court, Nassau County (Jonas, J.), entered August 23, 2006, which, upon an order of the same court dated August 14, 2006, granting the plaintiff’s motion for summary judgment on the complaint and denying its cross motion for summary judgment dismissing the first cause of action, is in favor of the plaintiff and against it in the principal sum of $13,491.40.

Ordered that the judgment is affirmed, with costs.

In support of its motion for summary judgment, the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the requisite billing forms, the affidavits from its billers, as well as the certified mail receipts, and the signed return receipt cards which referenced the patients and the forms (see New York & Presbyt. Hosp. v Travelers Prop. Cas. Ins. Co., 37 AD3d 683 [2007]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 34 AD3d 532 [2006]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493 [2006]). This evidence demonstrated that the defendant received proof of the claims and failed to pay the bills or issue a denial of claim form within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a]).

In opposition to the plaintiff’s motion, the defendant failed to raise a triable issue of fact, and in support of its cross motion for summary judgment dismissing the first cause of action, the defendant failed to make a prima facie showing of its entitlement to judgment as a matter of law. The defendant contended that the claim for payment with respect to the first cause of action was [*2]premature because the plaintiff had failed to respond to its verification requests (see 11 NYCRR 65-3.5 [b]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]). The defendant submitted the affidavit of a supervisor employed in its claims department, which stated, with respect to the first cause of action, that a timely verification request was mailed on August 11, 2005, and a follow-up request was mailed on September 10, 2005. The supervisor, however, had no personal knowledge that the verification requests were actually mailed on the dates they were issued, and her conclusory allegations regarding the defendant’s office practice and procedure failed to establish that the practice and procedure was designed to ensure that the verification requests were addressed to the proper party and properly mailed (see Matter of Phoenix Ins. Co. v Tasch, 306 AD2d 288 [2003]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]; Matter of Government Empls. Ins. Co. [Hartford Ins. Co.], 112 AD2d 226, 227-228 [1985]). The defendant’s submissions were insufficient to create a presumption that the verification requests were received by the proper party (see Matter of Gonzalez [Ross], 47 NY2d 922, 923 [1979]; Nassau Ins. Co. v Murray, 46 NY2d 828 [1978]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d at 568; Matter of Phoenix Ins. Co. v Tasch, 306 AD2d 288 [2003]). Furthermore, the defendant’s failure to timely object to the completeness of the assignment of benefits forms or to seek verification of the assignments constituted a waiver of any defenses based thereon (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 34 AD3d 532 [2006]; Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]). Accordingly, the Supreme Court properly granted the motion and denied the cross motion. Spolzino, J.P., Krausman, Carni and Dickerson, JJ., concur.

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Stern & Montana, LLP, New York, N.Y. (Richard Montana of counsel), for respondent.

In an action to recover no-fault medical payments under a certain insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Martin, J.), dated March 30, 2007, which denied its motion for summary judgment on the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff contended, in its motion for summary judgment on the complaint, that it mailed a single “NF-5” claim form dated March 8, 2006, to the defendant, that such form was received by the defendant on March 9, 2006 and that an “NF-10” denial of claim form dated March 23, 2006, issued by the defendant in response, was not sufficiently specific to constitute a valid denial (see generally New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., 32 AD3d 458 [2006]; see also Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]). The plaintiff further argued that the defendant, having failed to serve a sufficient “NF-10” denial of claim form within the critical 30-day post-receipt-of-claim period, should be precluded from denying the claim (see generally Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; St. Vincent’s Hosp. & Med. Ctr. v Nationwide Mut. Ins. Co., 42 AD3d 523 [2007]; Westchester Med. Ctr. v Safeco Ins. Co. of Am., 40 AD3d 984 [2007]).

We agree with the Supreme Court that the plaintiff’s moving papers failed to establish that the “NF-10” denial of claim form was so vague or deficient as to not qualify as a proper response under 11 NYCRR 65-3.4 (c) (11). Moreover, the “NF-10” denial of claim form was issued within 30 [*2]days as required by Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c) (1) (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d at 278; St. Vincent’s Hosp. & Med. Ctr. v Nationwide Mut. Ins. Co., 42 AD3d at 524). Accordingly, the plaintiff failed to establish, prima facie, its entitlement to summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]), and we need not reach the sufficiency of the defendant’s opposing papers (see Ayotte v Gervasio, 81 NY2d 1062 [1993]).

In light of our determination, we decline to take judicial notice of certain diagnostic codes contained on the “UB-92” form.

Motion by the appellant on an appeal from an order of the Supreme Court, Nassau County, dated March 30, 2007, to strike the respondent’s brief on the ground that it raises issues which were not raised before the Supreme Court, Nassau County. By decision and order on motion of this Court dated September 5, 2007, the motion was referred to the bench hearing the appeal for determination upon the argument or submission of the appeal.

Upon the papers filed in support of the motion, the papers filed in opposition thereto, and the argument of the appeal, it is

Ordered that the motion is denied. Lifson, J.P., Dillon, Covello and McCarthy, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeals from an order of the Civil Court of the City of New York, Queens County (Bernice Daun Siegal, J.), dated September 23, 2005, and from a judgment of the same court entered March 31, 2006. The order granted plaintiff’s motion for summary judgment. The judgment, entered upon the order of September 23, 2005, awarded plaintiff the principal sum of $21,500.

Appeal from order dismissed.
Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated and plaintiff’s motion for summary judgment denied.
The appeal from the order is dismissed because the right of direct appeal therefrom terminated with the entry of a judgment in the action (see Matter of Aho, 39 [*2]NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affirmation by plaintiff, and various documents annexed thereto. The affirmation executed by plaintiff stated in a conclusory manner that the documents attached to his motion papers were his business records. In opposition, defendant argued, inter alia, that the affirmation by plaintiff failed to lay a proper foundation for the documents annexed to his moving papers and that, as a result, plaintiff failed to establish a prima facie case. The court granted plaintiff’s motion for summary judgment and this appeal by defendant ensued.
On appeal, defendant reiterates its argument that plaintiff did not make a prima facie showing because plaintiff failed to establish the admissibility of the claim forms annexed to his moving papers. We agree. Inasmuch as the affirmation submitted by plaintiff was insufficient to establish that he possessed personal knowledge of his office practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to his moving papers, plaintiff failed to make a prima facie showing of his entitlement to summary judgment since he stated that his affirmation was based upon his review of said records (see 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 judgment is reversed, the order granting plaintiff’s motion for summary judgment is vacated and plaintiff’s motion for summary judgment is denied.
In light of the foregoing, we do not address the parties’ remaining contentions. Pesce, P.J., Rios and Belen, JJ., concur.

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellants.

Law Offices of Peter X. Dodge, P.C., Melville, N.Y. (Sean T. Carew and Alex Monroy of counsel), for respondent.

In an action to recover no-fault medical payments under insurance contracts, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Palmieri, J.), dated April 11, 2007, as denied that branch of their motion which was for summary judgment on the first cause of action to recover payments for medical services rendered by the plaintiff Hospital for Joint Diseases, as assignee of Tami Cohen, and, upon searching the record, awarded the defendant summary judgment dismissing the first cause of action.

Ordered that the appeals by the plaintiffs Westchester County Medical Center, as assignee of Iesa Rivera, and Mary Immaculate Hospital, as assignee of Dwayne Cumberbatch, are dismissed, as those plaintiffs are not aggrieved by the order appealed from (see CPLR 5511); and it is further,

Ordered that the order is affirmed insofar as appealed from by the plaintiff Hospital for Joint Diseases, as assignee of Tami Cohen; and it is further,

Ordered that one bill of costs is awarded to the respondent.

Pursuant to the statutory and regulatory framework governing the payment of no-fault automobile insurance benefits, insurance companies are required either to pay or deny a claim for benefits within 30 days of receipt of the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]). However, the 30-day period in which to pay or deny a claim may be extended where the insurer [*2]makes a request for additional information within 15 business days of its receipt of the claim (see 11 NYCRR 65-3.5 [b]; New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512, 513 [2006]; Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 434 [2004]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 569 [2004]), and an insurer is not obligated to pay or deny a claim until all demanded verification is provided (see Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889 [2007]; New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d at 513; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]).

The plaintiff Hospital for Joint Diseases, as assignee of Tami Cohen (hereinafter the hospital) made a prima facie showing of its entitlement to judgment as a matter of law on the first cause of action to recover payment for medical services by submitting, inter alia, the requisite billing forms, a certified mail receipt referencing the patient, a signed return receipt card also referencing the patient, and the affidavit of its biller averring that the defendant failed to pay the bill or issue a timely denial of claim form within 30 days (see Westchester Med. Ctr. v Safeco Ins. Co. of Am., 40 AD3d 984 [2007]; New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]; New York & Presbyt. Hosp. v Travelers Prop. Cas. Ins. Co., 37 AD3d 683, 683-684 [2007]; Westchester Med. Ctr. v AIG, Inc., 36 AD3d 900 [2007]). However, in opposition to the motion, the defendant submitted evidentiary proof that it timely requested additional information from the hospital to verify its claim, and that when the requested information was not received, it made a timely follow-up request. The defendant also offered unrebutted proof that the hospital ignored its verification requests. Since the requested verification was not provided, the 30-day period within which the defendant was obligated to pay or deny the hospital’s claim did not begin to run (see Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432 [2004]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 534-535 [2004]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555 [1999]), and the first cause of action was premature.

The hospital’s contention that the additional information which the defendant requested to verify its claim was improper or irrelevant is advanced for the first time on appeal, and thus is not properly before this Court (see Ozelkan v Tyree Bros. Envtl. Servs., Inc., 29 AD3d 877 [2006]; Hospital for Joint Diseases v Hertz Corp., 9 AD3d 391, 392 [2004]; St. Vincent’s Hosp. & Med. Ctr. v Allstate Ins. Co., 294 AD2d 425, 426 [2002]; Weber v Jacobs, 289 AD2d 226, 227 [2001]; St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641, 642 [1995]). Crane, J.P., Spolzino, Krausman and McCarthy, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Jack M. Battaglia, J.), entered May 25, 2006. The order granted plaintiff’s motion for summary judgment to the extent of awarding it partial summary judgment in the principal sum of $2,243.46 and denied defendant’s cross motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, 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. The court below granted plaintiff’s motion to the extent of awarding it partial summary judgment in the principal sum of $2,243.46 and denied defendant’s cross motion. The instant appeal by defendant ensued.

On appeal, defendant contends that the affidavit by plaintiff’s employee, submitted in support of the motion, failed to lay a proper foundation for the admission of the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. We agree. The affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists]; Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]).

Turning to the merits of defendant’s cross motion for summary judgment, the court below [*2]correctly denied same since defendant failed to demonstrate as a matter of law its entitlement to summary judgment. Defendant did not sufficiently establish that it mailed the verification requests and follow-up verification requests or set forth a standard office practice or procedure designed to ensure that such items were properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Consequently, defendant did not demonstrate that plaintiff’s causes of action were premature (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]). Further, to the extent defendant denied the claims based on fraud, the affidavits submitted by defendant were inadequate to establish as a matter of law “that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, the court below properly denied defendant’s cross motion for summary judgment (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Pesce, P.J., Weston Patterson and Belen, JJ., concur.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Joseph Esposito, J.), entered September 22, 2005. The order, insofar as appealed from as limited by the brief, granted plaintiff’s cross motion for summary judgment.

Order, insofar as appealed from, reversed without costs and plaintiff’s cross motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s cross motion for summary judgment was granted. The sole issue raised on appeal is whether defendant proffered sufficient evidence to demonstrate that there was an issue of fact as to whether the injuries plaintiff’s assignor allegedly sustained
arose from an insured incident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Upon a review of the record, we find that the affidavit submitted by defendant’s investigator was sufficient to demonstrate a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (id. at 199). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, supra; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff was not entitled to summary judgment.

Pesce, P.J., Weston Patterson and Belen, JJ., concur.