Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered July 1, 2011. The order granted defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with $25 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant's motion for summary judgment dismissing the complaint.

Defendant's motion for summary judgment was based upon its timely denial of plaintiff's claim on the ground that plaintiff had failed to submit written proof of claim to defendant within 45 days of the services rendered (see Insurance Department Regulations [11 NYCRR] § 65-1.1). Contrary to plaintiff's argument on appeal, defendant established that it had timely denied the claim (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]). Furthermore, plaintiff cannot rely upon the need for discovery to defeat defendant's motion for summary judgment (see CPLR 3212 [f]), as the discovery plaintiff seeks is not essential to justify opposition to the motion. Finally, plaintiff has not demonstrated the existence of a triable issue of fact to defeat defendant's prima facie showing of its entitlement to judgment as a matter of law.

Accordingly, the order is affirmed.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 08, 2013