Defendant appeals from so much of an order of the Civil Court, Bronx County (Francis M. Alessandro, J.), entered February 3, 2006, as denied its cross motion for summary judgment.

PER CURIAM: <
endemph type='bf'>Order (Francis M. Alessandro, J.), entered February 3, 2006, affirmed, with $10 costs.

Defendant's cross motion for summary judgment was properly denied. Although a health care provider is required to submit its proof of claim within 45 days after the services were rendered (see 11 NYCRR 65-1.1 [d]), an insurer is precluded from asserting the defense of a provider's untimely submission of proof of claim if it does not issue a timely denial of claim (see New York & Presbyt. Hosp. v Eagle Ins. Co., 17 AD3d 646 [2005]; Montefiore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 9 AD3d 354 [2005]). Here, it is uncontroverted that plaintiff health care provider did not submit its proof of claim within the prescribed 45-day period. However, while defendant contends that it timely denied plaintiff's claim, the affidavit of defendant's claims representative submitted to establish proof of mailing neither stated that she actually mailed the denial to plaintiff nor described defendant's mailing office practice and procedures (see New York and Presbyterian Hospital v Allstate Ins. Co., AD3d [2006], 814 NYS2d 687 {29 AD3d 547} ; Friedman v Allcity Ins. Co., 118 AD2d 517 [1986]).

We note that defendant's reply affidavit may not be considered for the purpose of establishing prima facie entitlement to summary judgment (see Batista v Santiago, 25 AD3d 326 [2006].

This constitutes the decision and order of the court.
Decision Date: August 15, 2006