Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered July 9, 2007. The order granted defendant's motion for summary judgment dismissing the complaint.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment, asserting, inter alia, that the services rendered were not medically necessary. In opposition, plaintiff argued, inter alia, that defendant failed to make a prima facie showing that the services at issue were not medically necessary. The Civil Court granted defendant's motion for summary judgment dismissing the complaint, holding that defendant established a lack of medical necessity and that defendant's denial of claim form interposing said defense was timely. The instant appeal by plaintiff ensued.

Contrary to plaintiff's contention, defendant demonstrated that it timely mailed the denial of claim form at issue based upon its standard office practice or procedure designed to ensure that items are properly addressed and mailed (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16, 18 [App Term, 2d & 11th Jud Dists 2007]). Defendant's affirmed peer review report and the affidavit of its peer review acupuncturist established prima facie that there was no medical necessity for the services provided by plaintiff. We note that as some of the medical reports relied upon by defendant's acupuncturist in his peer review report were prepared by plaintiff, plaintiff could not challenge the reliability of its own medical records and reports (see Cross Cont. Med., P.C. v Allstate Ins. Co., 13 Misc 3d 10 [App Term, 1st Dept 2006]; see also Home [*2]Care Ortho. Med. Supply, Inc. v American Mfrs. Mut. Ins. Co., 14 Misc 3d 139[A], 2007 NY Slip Op 50302[U] [App Term, 1st Dept 2007]). Furthermore, since it has been held that an "expert witness's testimony of reliance upon out-of-court material to form an opinion may be received in evidence, provided there is proof of reliability" (Wagman v Bradshaw, 292 AD2d 84, 85-86 [2002]), the fact that defendant's peer reviewer relied upon medical reports from other medical providers in forming his opinion as to the medical necessity of the service performed does not render the peer review report insufficient to establish a lack of medical necessity. Inasmuch as plaintiff failed to rebut said showing, defendant was entitled to summary judgment dismissing the complaint (see A Khodadadi Radiology, P.C. v NY Cent. Mut. Fire Ins. Co., 16 Misc 3d 131[A], 2007 NY Slip Op 51342[U] [App Term, 2d & 11th Jud Dists 2007]).

Plaintiff's remaining contention lacks merit.

Weston Patterson, J.P., Golia and Steinhardt, JJ., concur.
Decision Date: March 17, 2009