Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), entered December 17, 2008. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed without 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 moved for summary judgment dismissing the complaint. The Civil Court denied the motion due to the lack of specificity in the affidavit of defendant's mail clerk regarding mailing of the denial & requests for additional verification." The instant appeal by defendant ensued.

Contrary to the determination of the Civil Court, the affidavits of defendant's no-fault claims examiner and mail clerk were sufficient to establish that defendant had timely mailed the additional verification requests and NF-10 denial of claim forms in that they described, in detail, based on the affiants' personal knowledge, defendant's standard office practice and procedure designed to ensure that said documents were mailed (see 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 [App Term, 2d & 11th Jud Dists 2007]). In regard to the two $990.48 claims for services rendered to assignor Avez, it is undisputed that plaintiff failed to respond to defendant's verification requests. While plaintiff argues that the requests should have been sent to the referring physician, inaction was, in this case, not a proper response (see Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555 [1999]). Plaintiff should have informed defendant that the requests should be sent elsewhere. Consequently, the time in which defendant had to pay or deny the claims was tolled, and the branch of defendant's motion seeking summary judgment dismissing the first and second causes of action, on the ground that they were premature, should have been granted (Alur Med. Supply, Inc. v Eveready Ins. Co., 24 Misc 3d 135[A], 2009 NY Slip Op 51492[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Defendant's denial of claim form, which denied the claims pertaining to assignor Rafailova on, among other grounds, a lack of medical necessity, together with defendant's [*2]affirmed peer review report, established, prima facie, that there was no medical necessity for the services at issue. The fact that defendant's peer reviewer considered medical records from plaintiff, as well as from other providers who treated the assignor, in forming his opinion as to the medical necessity of the relevant services, does not warrant a contrary result. Plaintiff may not challenge the reliability of its own medical records (see PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 142[A], 2009 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Cross Cont. Med., P.C. v Allstate Ins. Co., 13 Misc 3d 10 [App Term, 1st Dept 2006]). With respect to the medical records of other providers who had rendered treatment to this assignor, it is noted the plaintiff stands in the shoes of its assignor and acquires no greater rights than its assignor (see Zeldin v Interboro Mut. Indem. Ins. Co., 44 AD3d 652 [2007]; Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763 [2007]; West Tremont Med. Diagnostic, P.C. v Geico Ins. Co., 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [App Term, 2d & 11th Jud Dists 2006]; see generally East Acupuncture, P.C. v Allstate Ins. Co., 61 AD3d 202, 210 [2009] [ in some instances, (the) regulations use the term applicant' as a generic reference to both provider/assignees and injured persons"]). As a result, plaintiff's contention that defendant must consider plaintiff's bills in a vacuum and ignore medical records which defendant received either from the assignor or from another provider who had submitted such records on behalf of the assignor, lacks merit.

Moreover, we note that, while defendant's peer review doctor may have considered medical records received from other providers who had rendered treatment to the assignor, defendant was not seeking to use such records to establish the truth of the facts set forth therein. Defendant was not attempting to prove that Rafailova was injured as documented in her medical records, or that she was treated as set forth in those records. Instead, defendant's peer review doctor simply opined that, assuming the facts set forth in Rafailova's records were true, the treatment allegedly provided was not medically necessary. Therefore, as defendant was not using the underlying medical records for their truth, such records were not being used for a hearsay purpose (see e.g. Dawson v Raimon Realty Corp., 303 AD2d 708 [2003]; Splawn v Lextaj Corp., 197 AD2d 479 [1993]). This is distinguishable from a situation in which a medical expert relies upon medical records to establish the fact of an injury (see e.g. Hambsch v New York City Tr. Auth., 63 NY2d 723 [1984]; Wagman v Bradshaw, 292 AD2d 84 [2002]). Consequently, plaintiff's argument that defendant failed to establish the reliability of the underlying medical records in support of its claim that the treatment provided was not medically necessary is irrelevant.

Furthermore, plaintiff did not demonstrate that it needed the records from the other providers in order to raise a triable issue of fact as to whether the services at issue were medically necessary when they were rendered (see CPLR 3212 [f]; GZ Med. & Diagnostic, P.C. v Mercury Ins. Co., 26 Misc 3d 146[A], 2010 NY Slip Op 50491[U] [App Term, 2d, 11th & 13th Jud Dists 2010]), and that it had served discovery demands during the ample opportunity that it had to commence discovery proceedings to obtain such records before the instant summary judgment motion was brought (see Meath v Mishrick, 68 NY2d 992 [1986]). Consequently, plaintiff failed to establish a basis to defeat defendant's motion for summary judgment. In view of the foregoing, and as plaintiff's remaining contentions lack merit or are unpreserved for appellate review, the branch of defendant's motion seeking summary judgment dismissing the [*3]third and fourth causes of action should also have been granted (see PLP Acupuncture, P.C. v Progressive Cas. Ins. Co., 22 Misc 3d at 142[A] 2009 NY Slip Op 50491[U]).

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

Steinhardt, J.P., Pesce and Rios, JJ., concur.
Decision Date: June 08, 2010