Defendant, as limited by its briefs, appeals from so much of an order of the Civil Court of the City of New York, Bronx County (Fernando Tapia, J.), entered September 25, 2012, as denied its motion for summary judgment dismissing the complaint.

Per Curiam.

Order (Fernando Tapia, J.), entered September 25, 2012, insofar as appealed from, reversed, with $10 costs, and defendant's motion for summary judgment dismissing the complaint granted. The Clerk is directed to enter judgment accordingly.

The affidavits submitted by defendant in support of its motion for summary judgment established that defendant timely denied (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]) plaintiff's claim for assigned first-party no-fault benefits on the ground that the fees plaintiff charged for the acupuncture services it rendered to the assignor exceeded the amount permitted by the worker's compensation fee schedule. In opposition, plaintiff failed to raise a triable issue as to the efficacy of defendant's mailing of the denial or the calculation of the fee. Therefore, defendant's motion for summary judgment dismissing the claim - which sought the difference between the amount charged for the services and payments made to plaintiff pursuant to the fee schedule - should have been granted.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: November 20, 2013