Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered September 22, 2011. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, with $30 costs, and defendant's motion for summary judgment dismissing the complaint is granted.

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

In support of its motion, defendant proffered an affidavit by its claims representative which was sufficient to establish that defendant's denial of claim forms had been 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 Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) and that plaintiff had submitted its claims to defendant more than 45 days after the date the supplies had been provided to plaintiff's assignor (see Insurance Department [*2]Regulations [11 NYCRR] § 65-1.1). Defendant's denial of claim forms adequately advised plaintiff of the basis for the denial, and they further advised plaintiff that the late submission of the claims would be excused if plaintiff provided a reasonable justification for the lateness (see Insurance Department Regulations [11 NYCRR] § 65-3.3 [e]).

Contrary to plaintiff's argument, defendant was not required to establish that its denial of claim forms constituted evidence in admissible form pursuant to the business records exception to the rule against hearsay as set forth in CPLR 4518. Defendant did not submit the denials as memoranda "of any act, transaction, occurrence, or event" recorded therein (CPLR 4518 [a]; see Five Boro Psychological Servs., P.C. v Progressive Northeastern Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50991[U] [App Term, 2d, 11th & 13th Jud Dists 2010]; Quality Health Prods., Inc. v NY Cent. Mut. Fire Ins. Co., 27 Misc 3d 141[A], 2010 NY Slip Op 50990[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Instead, defendant submitted its copies of the denials only to show that these were the denials at issue in this case. Defendant did not try to use the denials to establish, for example, the truth of the stated basis of the denials. Thus, in this context, the denials were not hearsay (see Beal-Medea Prods., Inc. v NY Cent. Mut. Fire Ins. Co., 36 Misc 3d 135[A], 2012 NY Slip Op 51347[U] [App Term, 2d, 11th & 13th Jud Dists 2012]).

Accordingly, the order is reversed and defendant's motion for summary judgment dismissing the complaint is granted.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: November 26, 2013