Appeal and cross appeal from an order of the Civil Court of the City of New York, Kings County (Wavny Toussaint, J.), entered March 19, 2012. The order, insofar as appealed from by plaintiff, denied plaintiff's motion for summary judgment and granted the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover the $584.70 unpaid balance on a claim for $871.49. The order, insofar as cross-appealed from by defendant, denied the remaining branches of defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order 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 on a claim for $1,118.80 is granted and the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover the $584.70 unpaid balance on a claim for $871.49 is denied; as so modified, the order is affirmed, without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant opposed the motion and cross-moved for summary judgment dismissing the complaint, alleging that claims for $182.18, $80.02, $245.81, $302.17 and $309.42 had been timely paid; that a claim for $1,091.76 had been timely denied based on [*2]plaintiff's failure to submit it to defendant within 45 days of the date the services had been rendered; that a claim for $1,118.80 had been timely denied based upon a lack of medical necessity; and that the $584.70 unpaid balance on a claim for $871.49 had been timely denied based upon the workers' compensation fee schedule. The Civil Court denied plaintiff's motion for summary judgment and granted the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover the $584.70 unpaid balance on the claim for $871.49, which the court described as "that portion of the motion pertaining to the fee schedule." Both parties appeal.

The branches of plaintiff's motion seeking summary judgment on the claims for $182.18, $80.02, $245.81, $302.17 and $309.42, and the branches of defendant's cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover on those claims, were properly denied, as there is a triable issue of fact as to whether defendant paid those claims (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

Plaintiff failed to demonstrate its prima facie entitlement to summary judgment on the claim for $1,091.76 and the unpaid balance of $584.70 on the claim for $871.49, as the affidavit submitted by plaintiff in support of its motion failed to establish that those claims had not been timely denied or that defendant had issued timely denials that were conclusory, vague or without merit as a matter of law (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]; Ave T MPC Corp. v Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; see also Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]). Consequently, the branches of plaintiff's motion seeking summary judgment on so much of the complaint as sought to recover for those claims were properly denied.

The branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover on the claim for $1,091.76 was properly denied, as defendant failed to rebut plaintiff's prima facie showing that this claim, for services rendered on February 1, 2010, had been mailed on March 13, 2010. Consequently, defendant did not prove, as a matter of law, that plaintiff had failed to comply with the 45-day rule (11 NYCRR 65-1.1).

The branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover the $584.70 unpaid balance on the claim for $871.49 should have been denied, as defendant failed to proffer sufficient evidence to establish, as a matter of law, that this claim had been improperly billed or was in excess of the amount permitted by the fee schedule (see Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d, 11th & 13th Jud Dists 2009]; see also Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13 [2009]).

However, the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover on the claim for $1,118.80 should have been granted (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]). The papers submitted by defendant were sufficient to establish that defendant had timely mailed (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) a denial of claim form which denied this claim on the ground of lack of medical necessity. Moreover, [*3]defendant submitted a sworn 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 the services at issue. In opposition, plaintiff submitted an affirmation by a doctor which failed to meaningfully refer to, let alone sufficiently rebut, the conclusions set forth in the peer review report (see Pan Chiropractic, P.C. v Mercury Ins. Co., 24 Misc 3d 136[A], 2009 NY Slip Op 51495[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Accordingly, the order 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 on a claim for $1,118.80 is granted and the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover the $584.70 unpaid balance on a claim for $871.49 is denied.

Pesce, P.J., Aliotta and Solomon, JJ., concur.