Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered January 5, 2006. The order denied plaintiff's motion for summary judgment.

Order modified by providing that plaintiff's motion for summary judgment is granted to the extent of awarding plaintiff partial summary judgment in the principal sum of $2,630.44, and matter remanded to the court below for the calculation of statutory interest and attorney's fees thereon, and for all further proceedings on the remaining claims; as so modified, affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant submitted opposition papers
which asserted, inter alia, that defendant timely denied plaintiff's claims based upon peer review reports and because plaintiff sought fees in excess of the Workers' Compensation fee schedule. The court below denied plaintiff's motion on the ground that defendant's submissions demonstrated the existence of triable issues of fact. The instant appeal by plaintiff ensued.

Inasmuch as defendant failed to specify the basis for its conclusory assertion in its opposition papers that plaintiff failed to set forth a prima facie case, we do not pass on the propriety of the implicit determination of the court below that plaintiff made such a showing.

In opposition to plaintiff's motion, defendant's claims representative stated that defendant never received the claim form seeking the sum of $480. Having found that plaintiff shifted the [*2]burden to plaintiff, the lower court erred in implicitly finding that defendant's mere denial of receipt of said form was sufficient to rebut the presumption of receipt, thereby raising an issue of fact (see A.B. Med. Servs. PLLC v Motor Veh. Acc. Indem. Corp., 6 Misc 3d 131[A], 2005 NY Slip Op 50088[U] [App Term, 2d & 11th Jud Dists]). Accordingly, plaintiff was entitled to summary judgment upon this claim. We note that the affidavit of plaintiff's billing manager set forth that he personally mailed plaintiff's claim forms.

The affidavit of defendant's claims representative established that defendant timely denied plaintiff's claims for the sums of $1,573.24, $1,546.20 and $604.24 on the ground of lack of medical necessity, based on the peer review reports of Dr. Seliger, Dr. Russ and Dr. Mo, respectively, which were attached to the denial of claim forms. Since the affirmed peer review report of Dr. Seliger set forth a factual basis and medical rationale for his opinion that the medical services provided were medically unnecessary, it was sufficient to raise a triable issue of fact as to plaintiff's $1,573.24 claim (see Amaze Med. Supply Inc. v Travelers Prop. Cas. Corp., 7 Misc 3d 128[A], 2005 NY Slip Op 50452[U] [App Term, 2d & 11th Jud Dists]). However, the peer review reports of Dr. Russ and Dr. Mo indicated that the claims for $1,546.20 and $604.24, respectively, were not medically necessary since they lacked sufficient information upon which to make such a determination. "[T]he fact that the reviewer[s] lacked sufficient information does not, in and of itself, demonstrate a triable issue of fact, without a showing that defendant sought to obtain such information by means of a request pursuant to the verification procedures (see 11 NYCRR 65.15 [d], now 11 NYCRR 65-3.5 [b]; 11 NYCRR 65.15 [e], now 11 NYCRR 65-3.6 [b])" (A.B. Med. Servs. PLLC v American Mfrs. Mut. Ins. Co., 6 Misc 3d 133[A], 2005 NY Slip Op 50114[U] [App Term, 2d & 11th Jud Dists]; see also A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co., 12 Misc 3d 8 [App Term, 2d & 11th Jud Dists 2006]). Since defendant did not demonstrate that it sought verification to obtain the missing information, defendant did not establish a triable issue of fact with regard to the claims for the sums of $1,546.20 and $604.24. Consequently, plaintiff was entitled to summary judgment upon these two claims. With respect to the remaining claims, defendant's claims representative asserted that they were timely denied based on the ground that the fees charged were in excess of the Workers' Compensation fee schedule. Said defense raised a triable issue of fact warranting the denial of plaintiff's motion for summary judgment as to said claims (see Triboro Chiropractic & Acupuncture P.L.L.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 138[A], 2005 NY Slip Op 50856[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, partial summary judgment is granted to plaintiff in the sum of $2,630.44, and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney's fees due thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claims.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 28, 2007