Appeal from an order of the Civil Court of the City of New York, Kings County (Dawn Jiminez Salta, J.), entered March 31, 2011. The order, insofar as appealed from, denied defendant's cross motion for summary judgment dismissing the complaint and found, in effect, that plaintiff had established, for all purposes in the action, the submission of the bills and the fact and the amount of the loss sustained.

ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon a claim for $1,916.46 is granted; as so modified, the order, insofar as appealed from, is affirmed, without costs. [*2]

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court denied plaintiff's motion for summary judgment and defendant's cross motion for summary judgment dismissing the complaint, stating that the only issue for trial was the medical necessity of the services at issue (see CPLR 3212 [g]).

Contrary to defendant's argument on appeal, plaintiff established the submission of the bills and the fact and amount of the loss sustained. We therefore do not disturb the Civil Court's implicit finding that those facts had been established for all purposes in the action. To the extent that defendant argues that the order improperly found that plaintiff had established, for all purposes in the action, that defendant had issued claim denials that were conclusory, vague, or without merit as a matter of law, this is an incorrect reading of the order, which directs that a trial be held on the issue of medical necessity.

In support of its cross motion, defendant submitted a peer review report which set forth a factual basis and medical rationale for the reviewer's determination that there was a lack of medical necessity for nerve testing performed on August 19, 2009, for which plaintiff billed $1,916.46. Defendant's prima facie showing was not rebutted by plaintiff. Since plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment, the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $1,916.46 is granted (see Delta Diagnostic Radiology, P.C. v Integon Natl. Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51502[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; Delta Diagnostic Radiology, P.C. v American Tr. Ins. Co., 18 Misc 3d 128[A], 2007 NY Slip Op 52455[U] [App Term, 2d & 11th Jud Dists 2007]; 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]).

However, with respect to a bill for $590.01 for other testing performed on August 19, 2009, defendant failed to demonstrate that these services were not medically necessary, as it relied upon an independent medical examination performed nearly one year later, which did not address these services.

Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $1,916.46 is granted.

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