Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered September 17, 2013. The order, insofar as appealed from, denied the branches of defendant's motion seeking, respectively, (1) summary judgment dismissing the complaint, and (2) summary judgment upon the counterclaim.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant's motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services rendered to assignor Bevon Seebaran on August 27, 2010 and from September 17 to October 5, 2010 is granted; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for, among other things, summary judgment dismissing the complaint and summary judgment upon its counterclaim, and plaintiff cross-moved for summary judgment. Defendant argued that it had paid the claims submitted by plaintiff as assignee of Quetta Helm-Boxer, and six of the claims submitted by plaintiff as assignee of Bevon Seebaran, in compliance with the workers' compensation fee schedule. Defendant further asserted that, as it had overpaid on those claims, that is, it had paid in excess of the amount set forth on the fee schedule for acupuncture services performed by chiropractors, it was entitled to recover upon its counterclaim to offset the overpayments against amounts owed to plaintiff based on untimely claim denials. Finally, defendant argued that it had timely denied the remaining two claims submitted by plaintiff as assignee of Bevon Seebaran for services rendered on August 27, 2010 and from September 17 to October 5, 2010 on the ground of lack of medical necessity. Defendant appeals from so much of an order of the Civil Court as denied the branches of its motion seeking summary judgment dismissing the complaint, and upon the counterclaim.

Defendant showed that it had partially paid two of the claims, in the amounts of $1,100 and $550, respectively, submitted for services provided to plaintiff's assignor Bevon Seebaran, and defendant admitted that it had failed to timely deny those claims. Additionally, the record shows that the denial of a $550 claim submitted for services provided to assignor Quetta Helm-Boxer was also untimely. Consequently, as to these claims, defendant is precluded from asserting its fee schedule defense (see Great Wall Acupuncture, P.C. v GEICO Ins. Co., 25 Misc 3d 137[A], 2009 NY Slip Op 52308[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also [*2]Westchester Med. Ctr. v American Tr. Ins. Co., 17 AD3d 581 [2005]). With respect to the remaining claims that defendant allegedly paid in accordance with the fee schedule, while defendant demonstrated that it had made payments on these claims, defendant failed to make a prima facie showing that the amounts which it had reimbursed plaintiff equaled or exceeded the rate provided by the fee schedule for chiropractors performing acupuncture. As a triable issue of fact remains, the Civil Court properly denied the branch of defendant's motion seeking summary judgment dismissing the complaint insofar as it sought to recover for the unpaid portion of these claims, and, as to defendant's counterclaims, assuming without deciding that they set forth a viable cause of action, summary judgment was properly denied (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985]).

However, the affidavit of defendant's claims representative demonstrated that defendant had timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant's motion seeking summary judgment dismissing so much of

Aliotta, J.P., Solomon and Elliot, JJ., concur.