Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered September 17, 2009. The order, insofar as appealed from and as limited by the brief, denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order, insofar as appealed from, is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is granted except as to so much of the complaint as seeks to recover upon claims for $114.33 and $82.89, respectively; as so modified, the order, insofar as appealed from, is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied both the motion and the cross motion, but limited the issues for trial pursuant to CPLR 3212 (g), stating that "the only issues of fact are those of lack of medical necessity and whether [plaintiff] complied with [defendant's] verification requests." As limited by its brief, defendant appeals from so much of the order as denied its cross motion for summary judgment.

It is undisputed that defendant denied three of the bills at issue, for $274.26 (date of service December 15, 2006), $248.67 and $274.26 (date of service January 30, 2007), respectively, on the ground that the services billed for were not medically necessary. In support of its cross motion, defendant submitted an affirmed peer review report which set forth a factual basis and a medical rationale for the peer reviewer's determination that there was a lack of medical necessity for those services. Defendant's prima facie showing that the services were not medically necessary was unrebutted by plaintiff. As plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment as to these claims, the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover on these claims should have been 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]). [*2]

It is undisputed that defendant did not deny two bills, for $357.07 and $414.45, respectively. The Civil Court found a triable issue of fact as to whether plaintiff had complied with defendant's requests for verification of these claims. However, plaintiff did not raise a triable issue of fact with respect to that issue, since it failed to submit an affidavit by an individual with personal knowledge establishing that it had responded to the requests. Morever, while plaintiff argues on appeal that a trial should be held as to the reasonableness of the requests, inaction is an improper response to a verification request, and therefore plaintiff's objections regarding the requests will not now be heard (see Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999] Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010] Mary Immaculate Hosp. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 130[A], 2008 NY Slip Op 52046[U] [App Term, 9th & 10th Jud Dists 2008]). As plaintiff has not challenged the Civil Court's finding, in effect, that defendant is otherwise entitled to judgment as to these claims, the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover on these claims should have been granted.

Defendant failed to submit any proof in support of its defense that it had paid the claim for $114.33 in compliance with the workers' compensation fee schedule. Defendant also failed to address the final claim at issue, for $82.89. Accordingly, the branches of its cross motion seeking summary judgment dismissing so much of the complaint as seeks to recover on these claims were properly denied.

Accordingly, the order, insofar as appealed from, is modified by providing that defendant's cross motion for summary judgment dismissing the complaint is granted except as to so much of the complaint as seeks to recover upon claims for $114.33 and $82.89, respectively.

Pesce, P.J., Aliotta and Solomon, JJ., concur.
Decision Date: April 07, 2014