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 (Johnny Lee Baynes, J.), entered December 28, 2005. The order denied defendant’s motion for severance.

Order reversed without costs and defendant’s motion to sever the claim of each assignor into a separate action granted.

Plaintiff commenced this action to recover no-fault benefits as assignee of five individuals. The claims allegedly arose out of five separate accidents. Defendant
moved to sever the five causes of action in the complaint into five separate actions pursuant to CPLR 603, which motion the court below denied. The instant appeal by defendant ensued.

We find that the particular facts herein relating to each claim are likely to raise few, if any, common issues of law or fact, even if the assignors’ insurance policies are identical (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]; Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp., 291 AD2d 536 [2002]; S.I.A. Med. Supply Inc. v GEICO Ins. Co., 8 Misc 3d 134[A], 2005 NY Slip Op 51170[U] [App Term, 2d & 11th Jud [*2]Dists]; Metro Med. Diagnostics, P.C. v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 136[A], 2005 NY Slip Op 50238[U] [App Term, 2d & 11th Jud Dists]). Defendant’s answer clearly places at issue with respect to each assignor, inter alia, the necessity and reasonableness of the particular medical services rendered and the sufficiency of the no-fault claim forms that have been submitted. To the extent plaintiff argued that defendant needed to proffer an affidavit from someone with personal knowledge regarding prejudice to the defendant as a result of plaintiff’s joinder of the claims, this court has consistently held that the answer, without more, places at issue the basis for severance (see S.I.A. Med. Supply Inc. v GEICO Ins. Co., 8 Misc 3d 134[A], 2005 NY Slip Op 51170[U], supra; Metro Med. Diagnostics, P.C. v Motor Veh.
Acc. Indem. Corp., 6 Misc 3d 136[A], 2005 NY Slip Op 50238[U], supra). Accordingly, defendant’s motion to sever the causes of action should have been granted.

Pesce, P.J., Weston Patterson and Golia, JJ., concur.
Decision Date: May 15, 2007

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

Bryan M. Rothenberg, Hicksville, N.Y. (Fiedelman & McGaw [Ross P. Masler] of counsel), for respondent.

In an action to recover no-fault insurance medical benefits, the plaintiff appeals from an order of the Supreme Court, Nassau County (Alpert, J.), dated November 20, 2006, which granted that branch of the defendant’s motion which was pursuant to CPLR 317 to vacate a judgment of the same court entered March 8, 2005, upon its default in answering, and denied its motion to punish the defendant for contempt of court based on its failure to respond to an information subpoena.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in granting that branch of the defendant’s motion which was to vacate the default judgment pursuant to CPLR 317 (see CPLR 317; Franklin v 172 Aububon Corp., 32 AD3d 454, 455 [2006]; Rios v Starrett City, Inc., 31 AD3d 418 [2006]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 968 [2006]). The Supreme Court properly denied the plaintiff’s motion to punish the defendant for contempt. Rivera, J.P., Spolzino, Fisher, Lifson and Dickerson, 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 (Howard G. Lane, J.), entered September 30, 2005. The order granted plaintiff’s motion for summary judgment.

Order reversed without costs 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. 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 that defendant’s denial was based on 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 Golia, JJ., concur.
Decision Date: May 14, 2007

—[*1] Serpe, Andree & Kaufman (Rivkin Radler, LLP, Uniondale, N.Y. [Evan H. Krinick, Cheryl F. Korman, and Stuart M. Bodoff] of counsel), for appellant.

Ruffo, Tabora, Mainello & McKay, Lake Success, N.Y. (John F. McKay III and Michael Patigalia of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration, the appeal is from an order of the Supreme Court, Nassau County (Brandveen, J.), dated May 24, 2006, which granted the petition.

Ordered that the order is reversed, on the law, with costs, and the petition is denied.

On July 29, 2002 an insured of State Farm Insurance Companies (hereinafter State Farm) was in a vehicle which was struck by a vehicle owned by the City of Long Beach (hereinafter Long Beach). State Farm paid its insured no-fault benefits. State Farm then sought to recover such benefits from Long Beach’s insurer, Specialty National Insurance Company (hereinafter Specialty National), initiating arbitration pursuant to Insurance Law § 5105. In response, Long Beach commenced this proceeding to permanently stay the arbitration. State Farm appeals from the order of the Supreme Court granting the petition. We reverse.

An arbitration proceeding pursuant to Insurance Law § 5105 is to be commenced within three years of the accrual of an insurer’s claim (see Conception v Hew Cab Corp., 114 AD2d 880, 880-881 [1985]; see also Matter of Pacific Ins. Co. v State Farm Mut. Auto. Ins. Co., 150 AD2d 455, 456 [1989]; cf. Matter of Liberty Mut. Ins. Co. v State Farm Mut. Auto. Ins. Co., 265 AD2d 412 [1999]). Here, [*2]pursuant to Insurance Law § 5105, State Farm initiated arbitration approximately two years after the subject accident and, thus, well before the expiration of the applicable limitations period (see CPLR 214 [2]). Therefore, the Supreme Court improperly granted Long Beach’s petition based on the application of the one-year and 90-day statute of limitations of General Municipal Law § 50-i.

Long Beach’s remaining contentions are without merit. Miller, J.P., Ritter, Covello 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 (Delores J. Thomas, J), entered January 24, 2006. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover first-party no-fault benefits, plaintiff moved for summary judgment. The court below denied the motion on the ground that plaintiff’s moving papers failed to allege personal knowledge of the mailing of the claims. Plaintiff appeals from the denial of its motion for summary judgment.

On appeal, defendant asserts that the affidavit of plaintiff’s corporate officer, submitted in support of the motion, 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. 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]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: May 7, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from so much of an order of the Civil Court of the City of New York, Queens County (Kevin Kerrigan, J.), entered December 28, 2005, deemed an appeal from a judgment entered on February 17, 2006 (see CPLR 5501 [c]). The judgment, entered pursuant to the December 28, 2005 order insofar as it granted plaintiff partial summary judgment on its third cause of action, awarded plaintiff the principal sum of $5,127.27.

Judgment reversed without costs, order, insofar as it granted plaintiff partial summary judgment on its third cause of action, vacated and that branch of plaintiff’s motion seeking summary judgment on its third cause of action denied.

In this action by a provider to recover assigned first-party no-fault benefits, we do not pass on the propriety of the determination of the court below that plaintiff established its prima facie case of entitlement to summary judgment with respect to its third cause of action as defendant raised no issue in the court below or on appeal with respect thereto. Defendant’s sole issue on this appeal is whether it raised a triable issue of fact by proffering sufficient evidence in admissible form to demonstrate a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident,” in that the automobile accident at issue in said third cause of action was staged (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]).

Contrary to the determination of the court below, we find that defendant’s submission of a [*2]sworn affidavit of its special investigator was sufficient to demonstrate such a “founded belief” notwithstanding the fact that the affidavit contained hearsay allegations (cf. A.B. Med. Servs. PLLC v Utica Mut. Ins. Co., 10 Misc 3d 50 [App Term, 2d & 11th Jud Dists 2005]; Ocean Diagnostic Imaging P.C. v Utica Mut. Ins. Co., 9 Misc 3d 138[A], 2005 NY Slip Op 51747[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, that branch of plaintiff’s motion which sought summary judgment on its third cause of action should have been denied.

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

Rios, J., dissents in a separate memorandum:

Rios, J., dissents and votes to affirm the judgment in the following memorandum:

I disagree with the majority and vote to affirm the judgment of the lower court.

The thrust of defendant’s opposition to the motion for summary judgment lies in its claim that it has a founded belief that the underlying event was not an accident but, rather, an intentional act. To support its claim, defendant submits in opposition to plaintiff’s motion, the affidavit of investigator Don McCaslin who maintains that the underlying insurance policy was obtained through the unauthorized use of the identity of Sophia Lowe-Davis. McCaslin avers that Lowe-Davis was the victim of identity theft as
“confirmed by NYPD Detective Reedy.” Despite his representations, no affidavits from either Detective Reedy or Lowe-Davis accompany defendant’s opposition papers, nor is there any explanation as to why they are not tendered (see Alvord & Smith v Muller Constr. Co., 46 NY2d 276 [1978]).

In opposing the motion for summary judgment, it was incumbent upon defendant to present evidence in admissible form to require a trial on material issues. Here, defendant expressed unsubstantiated allegations which, even if believable, are insufficient to defeat a motion for summary judgment (see P. D. J. Corp. v Bansh Props., 23 NY2d 971 [1969]). [*3]
Decision Date: April 27, 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 (Diccia T. Pineda-Kirwan, J.), entered June 27, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

Appeal from an order of the same court entered December 22, 2005. The order, insofar as appealed from, in effect, vacated the judgment entered November 2, 2005 pursuant to the order entered June 27, 2005, granted plaintiff’s motion for reargument and, upon reargument, denied defendant’s cross motion for summary judgment. [*2]

On the court’s own motion, appeals consolidated for purposes of disposition.

Appeal from so much of the order entered June 27, 2005 as granted defendant’s cross motion for summary judgment dismissed as superseded.

Order entered June 27, 2005, insofar as reviewed, affirmed without costs.

Order entered December 22, 2005, insofar as appealed from, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed plaintiff’s motion and cross-moved for summary judgment on the ground that the subject insurance policy was canceled approximately one month prior to the accident. In an order entered June 27, 2005, the court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the action on the ground of lack of coverage due to cancellation of the insurance policy. Plaintiff appealed from said order and moved for reargument. While the motion and plaintiff’s appeal were pending, a judgment was entered on November 2, 2005 dismissing the action. In an order entered December 22, 2005, the court granted plaintiff’s motion to the extent of, in effect, vacating the judgment, granting reargument and, upon reargument, denying defendant’s cross motion for summary judgment, holding that defendant did not present evidence in admissible form establishing that the insurance policy was canceled. Defendant appeals from so much of the order entered December 22, 2005 by which it is aggrieved.

Plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by a corporate officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. The court denied plaintiff’s motion for summary judgment on the ground that the affidavit did not contain any facts relevant to the action and plaintiff failed to support its motion with admissible evidence.

Since 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, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; 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, plaintiff’s motion for summary judgment was properly denied, and thus the order entered June 27, 2005 is affirmed insofar as reviewed.

While the parties disagree as to which statute governed with respect to the cancellation of the subject insurance policy, it is beyond dispute that in support of its cross motion for summary judgment, defendant was required to establish, prima facie, that it mailed the notice cancelling the subject insurance policy (see Vehicle and Traffic Law § 313). Defendant failed to meet its burden upon its cross motion for summary judgment because it did not submit an affidavit from someone with personal knowledge which was sufficient to establish that the cancellation notice was mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]). Accordingly, the order entered December 22, 2005 is affirmed insofar as appealed from.

Pesce, P.J., Weston Patterson and Rios, JJ., concur. [*3]
Decision Date: April 27, 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 (Arlene Bluth, J.), entered November 29, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without 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 of plaintiff’s counsel, an affidavit by a corporate officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s corporate 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 corporate officer failed to set forth facts sufficient to demonstrate personal knowledge of the facts set forth therein and that, as a result, plaintiff failed to establish a prima facie case. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as 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 admissibility, 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.

Pesce, P.J., Weston Patterson and Rios, JJ., concur. [*2]
Decision Date: April 26, 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 (Alice Fisher Rubin, J.), entered August 8, 2005. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff, a licensed acupuncture health care provider, submitted claims based, inter alia, on acupuncture treatments provided assignor in 2001. In April 2001, defendant paid the claims at a reduced rate, with the explanation that, in the absence of a provision in the Workers’ Compensation Fee Schedule for such treatments, defendant was authorized to approve benefits based on what it had determined to be “a reasonable and customary fee for physical therapy.” Plaintiff sued to recover the unpaid balance, and moved for summary judgment arguing that defendant’s reduction in benefits was not authorized. In its cross motion for summary judgment, defendant insisted that the regulations and opinions of the New York State Insurance Department entitled defendant, in the absence of a fee schedule for acupuncture treatments provided by a licensed acupuncturist, to substitute therefor fee schedules promulgated “for similar procedures under schedules already adopted or established by the superintendent,” in this case, physical therapy. In reply, the plaintiff did not controvert defendant’s claim that physical therapy was a sufficiently similar procedure to merit application of the relevant fee schedules. The court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

On appeal, plaintiff claims, inter alia, that it was entitled to summary judgment and that [*2]the denials of claims issued by defendant were insufficient because they failed to set forth a sufficiently detailed factual basis and medical rationale for defendant’s conclusion that the fee charged by plaintiff for acupuncture services exceeded the compensation rate for physical therapy as set forth in the fee schedule. For the
reasons set forth below, we are of the opinion that the compensation analysis adopted by the defendant is applicable to the claims herein, and that the order should be affirmed.

Insurance Law § 5102 (a) (1) defines “basic economic loss” to include “all necessary expenses incurred for . . . professional health services” subject to the limitations of Insurance Law § 5108. The latter statute limits the amounts to be charged by providers of health services, and states that the charges for services specified in Insurance Law § 5102 (a) (1) “shall not exceed the charges permissible under the schedules prepared and established by the chairman of the workers’ compensation board . . . except where the insurer . . . determines that unusual procedures or unique circumstances justify the excess charge” (Insurance Law § 5108 [a]). The statute also authorizes the Superintendent of Insurance to “promulgate rules and regulations implementing and coordinating the provisions of” the No-Fault Law and the Workers’ Compensation Law with respect to charges for the professional health services specified in Insurance Law § 5102 (a) (1), “including the establishment of schedules for all such services for which schedules have not been prepared and established by the chairman of the workers’ compensation board” (Insurance Law § 5108 [b]).

Responsibility for administering the Insurance Law rests with the Superintendent of Insurance (Insurance Law § 301), who has “broad power to interpret, clarify, and implement the legislative policy” (Ostrer v Schenk, 41 NY2d 782, 785 [1977]). It is a well-established principle of law that the Superintendent’s interpretation of its regulations, “if not irrational or unreasonable, will be upheld in deference to his special competence and expertise with respect to the insurance industry, unless it runs counter to the clear wording of a statutory provision” (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 321 [2005], quoting Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444, 448 [1985]; Matter of Medical Socy. of
State of N.Y. v Serio, 100 NY2d 854, 864 [2003]; see also Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).

Part 68 (also known as Regulation 83) of the New York Insurance Department Regulations governs the charges for professional health services. The regulations provide that the “existing fee schedules prepared and established by the chairman of the Workers’ Compensation Board . . . are hereby adopted by the Superintendent of Insurance with appropriate modification so as to adapt such schedules for use pursuant to the provisions of section 5108 of the Insurance Law” (11 NYCRR 68.1 [a]). The fee schedules for professional health services referred to in Insurance Law § 5102 (a) (1), for which schedules have not been prepared and established by the Workers’ Compensation Board, may be established by the Superintendent, and are made part of
Appendix 17-C of the regulations (11 NYCRR 68.2). Appendix 17-C does not contain a fee schedule for acupuncture services performed by a licensed acupuncturist.

The New York State Department of Insurance has stated that medically necessary acupuncture services rendered by a licensed acupuncturist are covered expenses, and are eligible for reimbursement under Insurance Law § 5102 (a) (1) (see Ops Gen Counsel NY Ins Dept 04-0[*3]1-01). After the health services at issue herein were provided and the claims based thereon were submitted, the Superintendent promulgated fee schedules for acupuncture services provided by chiropractors licensed to administer acupuncture and by doctors certified to administer acupuncture. At the time plaintiff provided its services, however, there were no fee schedules for acupuncture services and there remain no schedules for licensed acupuncturists. Where, as here, a professional health service has been performed which is reimbursable under Insurance Law § 5102 (a) (1), but such service is performed by a type of provider which is not included in the fee schedules established by the Workers’ Compensation Board, and if the Superintendent of Insurance has not adopted or established a fee schedule applicable to the particular type of provider, “then the permissible charge for such service shall be the prevailing fee in the geographic location of the provider subject to review by the insurer for consistency with charges permissible for similar procedures under schedules already adopted or established by the superintendent” (11 NYCRR 68.5 [b]).

Defendant invoked its option to apply a rate “for similar procedures under schedules already adopted or established by the superintendent (11 NYCRR 68.5 [b] [emphasis added]), and plaintiff did not rebut defendant’s contention below that physical therapy is a sufficiently “similar procedure” to entitle defendant to impose a lesser rate based on the fee schedules for such services. Accordingly, the order granting defendant’s cross motion for summary judgment and denying plaintiff’s motion for summary judgment is affirmed.

Pesce, P.J., Golia and Belen, JJ., concur.
Decision Date: April 26, 2007

[*1]

Supreme Court, Appellate Term, Second Department, April 25, 2007

APPEARANCES OF COUNSEL

Cambio Votto Cassata & Gullo, Staten Island (Thomas J. Kilbane of counsel), for appellant. Gary Tsirelman, P.C., Brooklyn (Florence Zabokritsky of counsel), for respondent.

{**16 Misc 3d at 5} OPINION OF THE COURT

Memorandum.

Judgment reversed without costs, order entered December 16, 2005 vacated, plaintiff’s cross motion for summary judgment denied, defendant’s motion for summary judgment granted to the extent of awarding it partial summary judgment dismissing plaintiff’s claims in the amounts of $1,280.30 and $1,017, and matter remanded to the court below for all further proceedings.

Plaintiff commenced this action to recover $3,024.05 in first-party no-fault benefits for medical supplies provided to its assignor on the ground that payment of no-fault benefits was overdue. Thereafter, defendant moved for summary judgment. The parties entered into a stipulation of settlement adjourning the return date of defendant’s motion until December 16, 2005. The stipulation also provided that plaintiff was to serve its opposition papers by November 9, 2005 and defendant was to serve its reply papers by December 9, 2005. On December 13, 2005 plaintiff served defendant by mail with opposition papers and a cross motion for summary judgment. While a party may serve a cross motion at least three days prior to the [*2]time at which a motion is noticed to be heard (see CPLR 2215), where, as here, a party serves a cross motion by mail, an additional five days must be added (see CPLR 2103 [b] [2]; D’Aniello v T.E.H. Slopes, 301 AD2d 556 [2003]; Perez v Perez, 131 AD2d 451{**16 Misc 3d at 6} [1987]). A party’s failure to comply with CPLR 2215 may generally be excused in the absence of prejudice (see Walker v Metro-North Commuter R.R., 11 AD3d 339 [2004]). In the case at bar, however, the lower court improvidently considered and granted plaintiff’s cross motion for summary judgment since defendant was not afforded an opportunity to respond thereto (see Flannery v Goldsmith, 268 AD2d 267 [2000]). Likewise, the lower court improvidently exercised its discretion in accepting and considering plaintiff’s untimely opposition papers since the plaintiff failed to provide any excuse for its delay, and defendant was prejudiced by the court’s failure to allow defendant an opportunity to submit reply papers (see Mosheyeva v Distefano, 288 AD2d 448 [2001]; Risucci v Zeal Mgt. Corp., 258 AD2d 512 [1999]).

With regard to the merits of defendant’s motion for summary judgment, the affidavit of defendant’s no-fault examiner sufficiently established that defendant timely denied plaintiff’s claims for the sums of $1,280.30 and $1,017 by setting forth in detail defendant’s office practice and procedure for the mailing of denial of claim forms (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). The aforementioned bills were denied on the ground that the fees charged were excessive and the supplies provided were not medically necessary based upon the attached affirmed peer review report. In its motion, defendant made out a prima facie case that the supplies provided in the aforementioned claims were not medically necessary. As a result, the burden shifted to plaintiff to establish the existence of a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Since, under the circumstances presented, plaintiff’s opposition papers should not have been considered by the court, plaintiff did not establish a triable issue of fact as to the aforementioned claims.

Further, the affidavit of defendant’s no-fault examiner established that defendant received plaintiff’s claim for the sum of $726.75 on July 2, 2004. The no-fault examiner stated that defendant sent plaintiff a timely request for verification and, after receiving the requested verification, timely denied said claim. However, the record did not establish when the verification request pertaining to this claim was mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006], supra). Defendant did not prove that its time to pay or deny the claim was tolled as a result of the alleged verification request such{**16 Misc 3d at 7} that the denial of claim ultimately issued by defendant was timely. Consequently, defendant failed to sustain its burden of demonstrating its entitlement to judgment as a matter of law upon this claim. Accordingly, defendant’s motion for summary judgment should have been granted to the extent of awarding it partial summary judgment dismissing plaintiff’s claims for the sums of $1,280.30 and $1,017.

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