Appeal from an order of the District Court of Nassau County, First District (Andrea Phoenix, J.), dated June 4, 2012. The order denied defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, without costs.

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

Defendant established that it had timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008] Richard Morgan Do, P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 134[A], 2009 NY Slip Op 50242[U] [App Term, 9th & 10th Jud Dists 2009]) its denial of claim forms, which denied plaintiff's claims on the ground of lack of medical necessity. The sworn peer review report of defendant's chiropractor set forth a factual basis and medical rationale for the chiropractor's determination that there was a lack of medical necessity for the services provided to plaintiff's assignor (see Dynamic Med. Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 29 Misc 3d 139[A], 2010 NY Slip Op 52062[U] [App Term, 9th & 10th Jud Dists 2010]). Consequently, defendant established its prima facie entitlement to summary judgment (see Elmont Open MRI & Diagnostic Radiology, P.C. v State Farm Ins. Co., 27 Misc 3d 136[A], 2010 NY Slip Op 50829[U] [App Term, 9th & 10th Jud Dists 2010]). However, in opposition to defendant's motion, plaintiff submitted a sworn letter of medical necessity by its treating chiropractor which sufficiently demonstrated the existence of a question of fact as to medical necessity (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Accordingly, the order is affirmed.

Nicolai, P.J., Iannacci and Marano, JJ., concur.
Decision Date: February 28, 2014