EMC Health Prods., Inc. v Allstate Ins. Co. (2016 NY Slip Op 50313(U))

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered May 13, 2013. The order granted plaintiff’s motion for summary judgment.

ORDERED that the order is modified by providing that the branches of plaintiff’s motion seeking summary judgment upon the third and fourth causes of action are 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 moved for summary judgment. By order entered May 13, 2013, the Civil Court granted plaintiff’s motion.

Defendant’s contention—that plaintiff failed to make a prima facie showing of its entitlement to summary judgment because plaintiff did not establish that the supplies furnished by plaintiff had actually been delivered to plaintiff’s assignor and by whom they had been delivered—lacks merit, as it is not part of plaintiff’s prima facie case to establish these facts (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498 [2015]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556 [2008]). Since defendant has raised no other issue in the Civil Court or on appeal with respect to plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the determination of the Civil Court with respect thereto.

Defendant argues that plaintiff’s motion should have been denied because defendant raised a triable issue of fact by demonstrating that it had timely denied plaintiff’s claims on the grounds of lack of medical necessity and that the fees sought exceeded the amount permitted by the workers’ compensation fee schedule. We find that defendant’s opposition papers were sufficient to establish that the denial of claim forms pertaining to the claims underlying the third and fourth causes of action had been timely mailed (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Consequently, the branches of plaintiff’s motion seeking summary judgment upon the third and fourth causes of action should have been denied, as defendant in its opposition papers raised triable issues of fact with respect to these causes of action. However, as defendant failed to establish that it had timely mailed the denial of claim forms pertaining to the claims underlying the first and second causes of action, there is no basis to disturb so much of the order as granted the branches of plaintiff’s motion seeking summary judgment upon these causes of action.

Accordingly, the order is modified by providing that the branches of plaintiff’s motion seeking summary judgment upon the third and fourth causes of action are denied.

Pesce, P.J., Aliotta and Elliot, JJ., concur.