APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

DECISION

Motion by appellant for reargument and other relief is granted and, upon reargument, the decision and order of this court dated April 24, 2006 in the above-entitled matter are recalled and vacated and the following is substituted therefor:

"Appeal from an order of the Civil Court of the City of New York, Kings County (Ellen M. Spodek, J.), entered on April 26, 2005. The order denied plaintiff's motion for summary judgment.

Order affirmed without costs.

In an action to recover first-party no-fault benefits for health care services rendered to its assignor, a plaintiff health care provider establishes a prima facie entitlement to summary judgment by proof that it submitted the statutory claim forms, setting forth the fact and the amounts of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NYSlipOp 51701[U] [App Term, 2d & 11th Jud Dists]). While the affidavit submitted by plaintiff is insufficient to establish the mailing of the appended claim forms to defendant, the deficiency in plaintiff's moving papers concerning proof of its submission of the claims was cured by the defendant's denial of claim forms which adequately established that plaintiff sent, and that defendant received, the claim forms at issue, as well as by the affidavit of defendant's no-fault specialist, wherein she acknowledged receipt by the defendant of said claims (see Careplus Med. Supply Inc. v State-Wide Ins. Co., 11 Misc 3d 29 [App Term, 2d & 11th Jud Dists [2005]; A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co., 7 Misc 3d 14 [App Term, 2d & 11th Jud Dists 2005]).

In opposition to plaintiff's motion, defendant demonstrated both that it timely mailed its verification requests so as to toll the 30-day period (see 11 NYCRR 65-3.5 [b]; 65-3.6 [b]; Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432 [2004]) and that it timely mailed the NF-10 denial of claim forms during the 30-day period within which it

was required to pay or deny the claims (see 11 NYCRR 65-3.8 [c]). The affidavit of defendant's no-fault specialist was sufficient to establish either the basis of her personal knowledge that certain of the foregoing documents were mailed, or sufficiently described the standard office mailing procedure so as to give rise to the presumption of mailing as to the remaining mailings (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Contemp. Med. Diag. & Treatment, P.C. v Government Empls. Ins. Co., 6 Misc 3d 137[A], 2005 NYSlipOp 50254[U] [App Term, 2d & 11th Jud Dists]).

Since defendant established timely denials of the claims, defendant was not precluded from raising its defense that the amounts billed exceeded the sums permissible under the No-Fault Law (see New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 586 [2002]; Triboro Chiropractic & Acupuncture v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 138[A], 2005 NYSlipOp 50856[U] [App Term, 2d & 11th Jud Dists]; cf. Abraham v Country-Wide Ins. Co, 3 Misc 3d 130[A], 2004 NYSlipOp 50388[U] [App Term 2d & 11th Jud Dists]), and such defense raised a triable issue of fact as to the claims for which plaintiff sought summary judgment. In addition, with respect to the claim for $85, to the extent that defendant alleged a lack of medical necessity based on an independent medical examination, defendant's sworn report was sufficient to raise an issue of fact as to the medical necessity of the treatment billed for in that claim (see Amaze Med. Supply v Allstate Ins. Co., 2 Misc 3d 134[A], 2004 NYSlipOp 50211[U] [App Term, 2d & 11th Jud Dists]; see also Park Health Ctr. v Prudential Prop. & Cas. Ins. Co., 2001 NYSlipOp 40650[U] [App Term, 2d & 11th Jud Dists]).

We note that defendant's failure to seek verification of the assignments and to allege any deficiency in the assignments in timely denial of claim forms constitutes a waiver of any defenses with respect thereto (see New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]; Park Health Ctr. v Eveready Ins. Co., 2001 NYSlipOp 40665[U] [App Term, 2d & 11th Jud Dists]).

In view of the foregoing, plaintiff's motion for summary judgment was properly denied."

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