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.

ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits in the total amount of $1,384.21 for services rendered from October 2017 to February 2018, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) moved for summary judgment dismissing the first, third, fourth, fifth, and sixth causes of action on the ground of exhaustion of available coverage, dismissing the first cause of action on the additional ground of untimely submission of the claim underlying that cause of action, and dismissing the second cause of action on the ground of MVAIC having paid the claim underlying that cause of action in accordance with the workers' compensation fee schedule. 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.) denied the motion and cross-motion, finding, in effect, purportedly pursuant to CPLR 3212 (g), that plaintiff had "establishe[d] its prima face case of timely and properly submitting the bills" underlying causes of action two through six and that defendant had "issued timely denials."

To obtain summary judgment on its asserted defense that the limits of any available [*2]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 first, third, fourth, fifth, and sixth causes of action 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]).

The affidavit of defendant's claims representative demonstrated that MVAIC did not receive the claim underlying the first cause of action within 45 days of the services rendered (see 11 NYCRR 65-2.4 [c]; 65-3.3 [e]). However, plaintiff submitted an affidavit from plaintiff's billing clerk that was sufficient to give rise to a presumption that the claim form had been timely mailed to, and received by, MVAIC (see Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Consequently, contrary to MVAIC's contention, there is an issue of fact as to whether the claim was timely submitted to MVAIC (see Compas Med., P.C. v New York Cent. Mut. Fire Ins. Co., 50 Misc 3d 146[A], 2016 NY Slip Op 50307[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Contrary to MVAIC's argument, it failed to sufficiently demonstrate, prima facie, that it had properly applied CPT code 95834 to the claim underlying the second cause of action that had been billed by plaintiff under CPT code 95831 (cf. Spineisland for Chiropractic, P.C. v 21st Century Advantage Ins. Co., 55 Misc 3d 141[A], 2017 NY Slip Op 50598[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; Sama Physical Therapy, P.C. v American Tr. Ins. Co., 53 Misc 3d 129[A], 2016 NY Slip Op 51359[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]).

Accordingly, the order, insofar as appealed from, is affirmed.

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