Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered February 16, 2006. The order denied plaintiff's motion for summary judgment.

Order reversed without costs, plaintiff's motion for summary judgment granted and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney's fees.

In an action to recover first-party no-fault benefits, a provider generally establishes its prima facie entitlement to summary judgment by proof that it submitted the claim, setting forth the fact and the amount of the loss 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 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as defendant raised no issue in the court below or on appeal with respect to plaintiff's establishment of its prima facie case, we do not pass on the propriety of the implicit determination of the court below with respect thereto.

In opposition to plaintiff's motion for summary judgment, defendant failed to establish that the denial of claim form was timely mailed since the affidavit of defendant's claims representative did not state that she actually mailed the denial of claim form or set forth proof of [*2]defendant's office practices and procedures designed to ensure that items are properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Since defendant failed to establish that it mailed a timely denial of claim form to plaintiff (see 11 NYCRR 65-3.8 [c]), it is precluded from raising the proffered defense of lack of medical necessity (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

Accordingly, plaintiff's motion for summary judgment is granted and the matter is remanded to the court below for a calculation of statutory interest and an assessment of
attorney's fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Rios and Belen, JJ., concur.

Golia, J.P., dissents in a separate memorandum.

Golia, J.P., dissents and votes to affirm the order in the following memorandum:

In the first instance, I find that the plaintiff failed to establish its prima facie case. The supporting affidavit submitted by the plaintiff's corporate officer fails to provide sufficient facts to lay a foundation for the admission of the documents at issue as business records (Bath Med. Supply, Inc. v Deerbrook Ins. Co. 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists]).

The mere fact that the defendant "failed" to raise the issue of a prima facie case is of no moment inasmuch as this court, as well as the trial court, is obligated to make a finding that there is a prima facie case before even considering granting a judgment.
Accordingly, the plaintiff's motion for summary judgment should have been denied regardless of the sufficiency of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]).

Additionally, I find that the defendant's opposing papers established a timely denial.

Plaintiff asserts that the claim form was mailed on December 2, 2002 and defendant's NF-10 denial of claim form acknowledges receipt of such form, on December 4, 2002. This conformity of facts is certainly sufficient to show that the claim was mailed and that it was received on December 4, 2002.

Defendant thereafter asserts that it sent a request for verification on December 12, 2002 and received said verification on January 8, 2003. These documents were in the defendant's file and the defendant's claims representative submitted a sworn affidavit as to the truth of these statements.

Thereafter, on January 31, 2003, the NF-10 denial of claim form which was predicated on a peer review report was received by the plaintiff. [*3]

We know it was received by the plaintiff at that time, not only because, in her sworn affidavit, the defendant's claims representative asserted that it was sent, but also because, as the plaintiff does not deny, it received partial payment of its claim, in the
amount of $194.57 from the defendant, which payment accompanied the NF-10 form which denied the remainder of the claim.
Inasmuch as these facts establish a timely denial predicated upon a peer review report, the plaintiff s motion was properly denied.
Decision Date: July 03, 2007