Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), dated August 8, 2008. The order, insofar as appealed from as limited by the brief, implicitly denied defendant's cross motion for summary judgment dismissing plaintiff's first cause of action.

ORDERED that the order, insofar as appealed from, is reversed without costs, and defendant's cross motion for summary judgment dismissing plaintiff's first cause of action is granted.

In this action by a provider to recover assigned first-party no-fault benefits, insofar as relevant to this appeal, plaintiff moved for summary judgment upon its first cause of action and defendant cross-moved for summary judgment dismissing said cause of action. The Civil Court found that there is an issue of fact as to medical necessity and denied the motion and, implicitly, the cross motion. Defendant appeals, contending that its cross motion seeking the dismissal of the first cause of action should have been granted.

The affidavits submitted by defendant in opposition to plaintiff's motion and in support of its cross motion established that defendant had timely denied the claim at issue on the ground of lack of medical necessity, in accordance with defendant's standard office practice or procedure used to ensure that the denial of the claim form was properly addressed and mailed (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Moreover, defendant annexed to its motion papers the affidavit and peer review report of its chiropractor, that set forth a factual basis and medical rationale for the chiropractor's determination that there was a lack of medical necessity for the services rendered, which [*2]assertions were unrebutted (see e.g. Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; A. Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]). Consequently, defendant established its prima facie entitlement to summary judgment with respect to plaintiff's first cause of action, and plaintiff failed to raise a triable issue of fact with respect thereto. Accordingly, the order, insofar as appealed from, is reversed and defendant's cross motion for summary judgment dismissing plaintiff's first cause of action is granted.

Rios, J.P., Pesce and Golia, JJ., concur.
Decision Date: December 01, 2009