Marshall & Marshall, PLLC (Angelique Evangelista and Frank D'Esposito of counsel), for appellant.

The Rybak Firm, PLLC (Oleg Rybak, of counsel), for respondent (no brief filed).

Appeal from an order of the Civil Court of the City of New York, Kings County (Odessa Kennedy, J.), dated October 9, 2024. The order, insofar as appealed from, in effect, denied defendant's motion for summary judgment dismissing the complaint and, upon denying plaintiff's cross-motion for summary judgment, made an implicit CPLR 3212 (g) finding "that plaintiff establishe[d] its prima facie case of timely and properly submitting the bills in question and [that] defendant issued timely denials" as to the first cause of action.

ORDERED that the order, insofar as appealed from, is modified by striking so much thereof as, upon denying plaintiff's cross-motion for summary judgment, made an implicit CPLR 3212 (g) finding "that plaintiff establishe[d] its prima facie case of timely and properly submitting the bills in question and [that] defendant issued timely denials" as to the first cause of action; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits in the total amount of $2,246.03 for services rendered from January 2018 to March 2018, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the complaint on the ground of exhaustion of available coverage and dismissing the first cause of action on the ground that MVAIC had never received the claim underlying that cause of action. Plaintiff cross-moved for summary judgment or, in the alternative, for an order pursuant to CPLR 3212 (g) deeming certain facts established for all purposes in this action. By order dated October 9, 2024, the Civil Court (Odessa Kennedy, J.) [*2]"granted" defendant's motion and plaintiff's cross-motion to the extent of finding, purportedly pursuant to CPLR 3212 (g), that plaintiff had "establishe[d] its prima facie case of timely and properly submitting the bills in question and [that] defendant issued timely denials" as to all causes of action and that "defendant's defenses of fee schedule and policy exhaustion [were] triable issues."

To obtain summary judgment on its asserted defense that the limits of any available coverage had already been exhausted, MVAIC had to prove that its payments exhausted the available coverage in accordance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294 [2007]; Alleviation Med. Servs., P.C. v Allstate Ins. Co., 191 AD3d 934 [2021]). Here, the affidavit of MVAIC's claims representative was sufficient to lay a foundation for MVAIC's payment log to be admitted as a business record (see CPLR 4518 [a]). However, as the payment log does not set forth the dates on which MVAIC had received the various claims and the dates on which such claims became fully verified, MVAIC failed to demonstrate, as a matter of law, that the limits of the available coverage had been exhausted in accordance with 11 NYCRR 65-3.15. Consequently, the branch of MVAIC's motion seeking summary judgment dismissing the complaint on this ground was properly denied (see JFL Med. Care, P.C. v MVAIC, 81 Misc 3d 145[A], 2024 NY Slip Op 50202[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2024]).

MVAIC correctly argues on appeal that it submitted sufficient proof to demonstrate that it had not received the claim form underlying the first cause of action (see SK Prime Med. Supply v MVAIC, 73 Misc 3d 141[A], 2021 NY Slip Op 51200[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2021]). However, the affidavit of plaintiff's billing clerk was sufficient to raise an issue of fact as to whether that claim had been mailed to MVAIC in accordance with a standard mailing practice and procedure (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Thus, there remains an issue of fact as to whether plaintiff properly submitted the claim form underlying the first cause of action to MVAIC (see Parisien v Travelers Ins. Co., 65 Misc 3d 154[A], 2019 NY Slip Op 51895[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2019]). Consequently, MVAIC was not entitled to summary judgment dismissing the first cause of action (see Compas Med., P.C. v 21st Century Ins. Co., 47 Misc 3d 128[A], 2015 NY Slip Op 50388[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]), nor was plaintiff entitled to an implicit CPLR 3212 (g) finding that it "establishe[d] its prima facie case of timely and properly submitting the bills in question and [that] defendant issued timely denials" as to the first cause of action.

We note that, while the Civil Court held that a triable issue of fact exists as to MVAIC's fee schedule defense, MVAIC did not raise a fee schedule defense in support of its motion for summary judgment.

Accordingly, the order, insofar as appealed from, is modified by striking so much thereof as, upon denying plaintiff's cross-motion for summary judgment, made an implicit CPLR 3212 (g) finding "that plaintiff establishe[d] its prima facie case of timely and properly submitting the bills in question and [that] defendant issued timely denials" as to the first cause of action.

QUIÑONES, J.P., MUNDY and OTTLEY, JJ., concur.