Appeal from an order of the Civil Court of the City of New York, Kings County (Genine D. Edwards, J.), entered September 16, 2011. The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that plaintiff's motion for summary judgment is denied, and defendant's cross motion for summary judgment dismissing the complaint is granted except as to so much of the complaint as seeks to recover upon a claim for dates of service from July 8, 2008 to July 10, 2008; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corp. (sued herein as MVAIC) appeals from an order of the Civil Court which granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

A no-fault provider establishes its prima facie entitlement to summary judgment by proof of the submission to the defendant of a claim form, proof of the fact and the amount of the loss sustained, and proof that the defendant either failed to pay or deny the claim within the requisite 30-day period, or issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Insurance Law § 5106 [a]; Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). As plaintiff's affidavit in support of its motion for summary judgment failed to demonstrate either that defendant had failed to deny the claim or that defendant had issued a legally insufficient denial of claim form, plaintiff failed to establish its prima facie entitlement to summary judgment. Consequently, its motion should have been denied.

Defendant established that it had issued timely partial denials (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]) of the claims at issue in this action, with the exception of a claim form in the sum of $501.21 for [*2]services rendered between July 8, 2008 and July 10, 2008. According to the affidavit executed by defendant's claim representative, that denial of claim form was issued more than six months after defendant had received the claim form, and defendant did not allege that the payment or denial of this particular claim had been tolled. Consequently, defendant did not establish that this claim had been timely denied and, thus, defendant's cross motion for summary judgment was properly denied with respect to so much of the complaint as sought to recover upon that claim.

Defendant demonstrated that it had fully paid plaintiff for the remaining services at issue in accordance with the workers' compensation fee schedule. Consequently, the branches of defendant's cross motion for summary judgment seeking to dismiss so much of the complaint as sought to recover for these services should have been granted (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the order is modified by providing that plaintiff's motion for summary judgment is denied and defendant's cross motion for summary judgment dismissing the complaint is granted except as to so much of the complaint as seeks to recover upon plaintiff's claim for dates of service from July 8, 2008 to July 10, 2008.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: October 10, 2013