Appellate Term Second Department Second, Eleventh and Thirteenth Judical Districts By: Pesce, P.J., Aliotta, Solomon, JJ.

The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.Law Offices of Moira Doherty, P.C. (Janice P. Rosen, Esq.), for respondent.2014-2082 Q C. MASIGLA v. NATIONAL LIAB. & FIRE INS. CO. — Appeal from an order of the Civil Court of the City of New York, Queens County (Sally E. Unger, J.), entered August 12, 2014. The order, insofar as appealed from, granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which had been denied on the ground that plaintiff’s assignor had failed to attend independent medical examinations.ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which had been denied on the ground that plaintiff’s assignor had failed to attend independent medical examinations is denied.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which had been denied on the ground that plaintiff’s assignor had failed to attend independent medical examinations (IMEs).Plaintiff correctly argues that the affidavit submitted by defendant in support of its motion did not sufficiently set forth a standard office practice or procedure that would ensure that its letters scheduling plaintiff’s assignor for IMEs had been properly mailed (see St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]; TAM Med. Supply Corp. v. National Liab. & Fire Ins. Co., 53 Misc 3d 134[A], 2016 NY Slip Op 51423[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016]). Thus, defendant did not demonstrate its entitlement to summary judgment.Accordingly, the order, insofar as appealed from, is reversed and the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims which had been denied on the ground that plaintiff’s assignor had failed to attend IMEs is denied.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Morris, Duffy, Alonso & Faley (Gregory S. Nelson, Esq.), for appellant.Lewin, Goodman, Baglio, LLP, for respondent (no brief filed).2014-2783 Q C. MEDICAL DIVERSIFIED SERVS., INC. v. MVAIC — Appeal from a judgment of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, J.), entered September 12, 2014. The judgment, entered pursuant to a decision of the same court dated February 4, 2009, after a nonjury trial, awarded plaintiff the principal sum of $783.70.ORDERED that, on the court’s own motion, the notice of appeal from the decision dated February 4, 2009 is deemed a premature notice of appeal from the judgment entered September 12, 2014 (see CPLR 5520 [c]); and it is further,ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.At a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s witness testified that the claims had been mailed to defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC). Following the trial, the Civil Court awarded judgment to plaintiff in the principal sum of $783.70.“The filing of a timely affidavit providing the MVAIC with notice of intention to file a claim is ‘a condition precedent to the right to apply for payment from [MVAIC].’ Compliance with the statutory requirement of timely filing a notice of claim must be established in order to demonstrate that the claimant is a ‘covered person,’ within the meaning of the statute, entitled to recover no-fault benefits from the MVAIC” (Avicenna Med. Arts, P.L.L.C. v. MVAIC, 53 Misc 3d 142[A], 2016 NY Slip Op 51535[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2016] [citations omitted]; see Insurance Law §§5208 [a] [1], [3]; 5221 [b] [2]). As plaintiff did not establish that such an affidavit had been submitted to MVAIC, plaintiff failed to establish its prima facie case (see Insurance Law §§5202 [b]; 5208, 5221 [b] [2]).Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for the entry of a judgment in favor of defendant dismissing the complaint.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Law Offices of Peter C. Merani, P.C. (Eric M. Wahrburg, Esq.), for appellant.Lana Sukhman, Esq., for respondent (no brief filed).2014-2794 RI C. GREATER N.Y. MED. CARE, P.C. v. ALLSTATE INS. CO. — Appeal from a judgment of the Civil Court of the City of New York, Richmond County (Mary Kim Dollard, J.), entered December 2, 2014. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $3,119.44.ORDERED that, on the court’s own motion, the notice of appeal from a decision of that court dated June 28, 2013 is deemed a premature notice of appeal from the judgment entered December 2, 2014 (see CPLR 5520 [c]); and it is further,ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.Following a nonjury trial in this action by a provider to recover assigned first-party no-fault benefits, the Civil Court determined that defendant had demonstrated, prima facie, through the presentation of credible expert witness testimony, that the medical services at issue had not been medically necessary and that plaintiff had not rebutted defendant’s case. Notwithstanding the foregoing, the Civil Court awarded judgment to plaintiff in the principal sum of $3,119.44. In light of the contradiction between the Civil Court’s findings and its award, a new trial is warranted.Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Petre and Zabokritsky, P.C. (Zachary Rozenberg, Esq.), for appellant.Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.2015-151 Q C. ACTIVE CHIROPRACTIC, P.C. v. COUNTRY-WIDE INS. CO. — Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered December 1, 2014. The order, insofar as appealed from, denied the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon a claim for the sum of $290.64 and granted the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint.ORDERED that the order, insofar as appealed from, is affirmed, with $25 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. Plaintiff appeals from so much of an order of the Civil Court as denied the branch of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon a claim for the sum of $290.64 and granted the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint.Contrary to plaintiff’s contention, defendant established that, after receiving the $290.64 claim at issue, it had timely mailed initial and follow-up requests for written verification (see 11 NYCRR 65-3.5 [b]; 65-3.8 [l]; St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As defendant demonstrated that it had not received the requested verification, and plaintiff did not show that the verification had been provided to defendant prior to the commencement of the action, the 30-day period within which defendant was required to pay or deny the claim did not begin to run (see 11 NYCRR 65-3.5 [c]; 65-3.8 [a]; Central Suffolk Hosp. v. New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). Plaintiff’s remaining contentions regarding the verification requested by defendant lack merit.Accordingly, the order, insofar as appealed from, is affirmed.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Petre and Zabokritsky, P.C., (Zachary Rozenberg, Esq.), for appellant.Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.2015-155 Q C. MT SERVS. P.T., P.C. v. COUNTRY-WIDE INS. CO. — Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered December 3, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with $25 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. By order entered December 3, 2014, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.Contrary to plaintiff’s contention, defendant established that it had timely mailed initial and follow-up requests for written verification (see 11 NYCRR 65-3.5 [b]; 65-3.8 [l]; St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As defendant demonstrated that it had not received the requested verification, and plaintiff did not show that the verification had been provided to defendant prior to the commencement of the action, the 30-day period within which defendant was required to pay or deny the claims did not begin to run (see 11 NYCRR 65-3.5 [c]; 65-3.8 [a]; Central Suffolk Hosp. v. New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). As plaintiff’s remaining contentions regarding the verification requested by defendant lack merit, the order is affirmed.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Petre and Zabokritsky, P.C., (Zachary Rozenberg, Esq.), for appellant.Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.2015-156 Q C. AVENUE I MED., P.C. v. COUNTRY-WIDE INS. CO. — Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered December 2, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with $25 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. By order entered December 2, 2014, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.For the reasons stated in MT Servs. P.T., P.C., as Assignee of Richardson Steven v. Country-Wide Ins. Co. (__ Misc 3d___, 2017 NY Slip Op ____[appeal No. 2015-155 Q C], decided herewith), the order is affirmed.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Petre and Zabokritsky, P.C., (Zachary Rozenberg, Esq.), for appellant.Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.2015-167 Q C. VEGA CHIROPRACTIC, P.C. v. COUNTRY-WIDE INS. CO. — Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered December 3, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with $25 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. By order entered December 3, 2014, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.For the reasons stated in MT Servs. P.T., P.C., as Assignee of Richardson Steven v. Country-Wide Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-155 Q C], decided herewith), and since plaintiff’s remaining contention lacks merit, the order is affirmed.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Petre and Zabokritsky, P.C. (Zachary Rozenberg, Esq.), for appellant.Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.2015-288 Q C. FINE ARTS PT, P.C. v. COUNTRY-WIDE INS. CO. — Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered December 3, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with $25 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. By order entered December 3, 2014, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.For the reasons stated in MT Servs. P.T., P.C., as Assignee of Richardson Steven v. Country-Wide Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-155 Q C], decided herewith), the order is affirmed.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Petre and Zabokritsky, P.C. (Zachary Rozenberg, Esq.), for appellant.Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.2015-294 Q C. EXCLUSIVE PHYSICAL THERAPY, P.C. v. COUNTRY-WIDE INS. CO. — Appeal from an order of the Civil Court of the City of New York, Queens County (William A. Viscovich, J.), entered December 2, 2014. The order, insofar as appealed from as limited by the brief, denied the branches of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon claims for the sums of $246.40 and $985.60, and granted the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon those claims.ORDERED that the order, insofar as appealed from, is affirmed, with $25 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. Insofar as is relevant to this appeal, by order entered December 2, 2014, the Civil Court denied the branches of plaintiff’s motion seeking summary judgment upon so much of the complaint as sought to recover upon claims for the sums of $246.40 and $985.60, and granted the branches of defendant’s cross motion seeking summary judgment dismissing the complaint insofar as it sought to recover upon those claims.For the reasons stated in MT Servs. P.T., P.C., as Assignee of Richardson Steven v. Country-Wide Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-155 Q C], decided herewith), the order, insofar as appealed from, is affirmed.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Petre and Zabokritsky, P.C. (Zachary Rozenberg, Esq.), for appellant. Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.2015-317 Q C. W.H.O. ACUPUNCTURE, P.C. v. COUNTRY-WIDE INS. CO. — Appeal from an order of the Civil Court of the City of New York, Queens County (Richard G. Latin, J.), entered December 5, 2014. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with $25 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. By order entered December 5, 2014, the Civil Court denied plaintiff’s motion and granted defendant’s cross motion.For the reasons stated in MT Servs. P.T., P.C., as Assignee of Richardson Steven v. Country-Wide Ins. Co. (__ Misc 3d __, 2017 NY Slip Op ____ [appeal No. 2015-155 Q C], decided herewith), the order is affirmed.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017The Rybak Firm, PLLC (Joseph D. DePalma, Esq.), for appellant.Richard T. Lau & Associates, (Martin Dolitsky, Esq.), for respondent.2015-354 K C. RIGHT AID MED. SUPPLY CORP. v. STATE FARM MUT. AUTO. INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered November 12, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that the action was premature because plaintiff had failed to provide requested verification. By order entered November 12, 2014, the Civil Court granted defendant’s motion.In support of its motion, defendant established that it had timely mailed its verification request and follow-up verification request (see St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated prima facie that it had not received the requested verification and, thus, that plaintiff’s action is premature (see Central Suffolk Hosp. v. New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]). However, in opposition to the motion, plaintiff submitted an affidavit from plaintiff’s employee, which affidavit was sufficient to give rise to a presumption that the requested verification had been mailed to, and received by, defendant (see Residential Holding Corp. v. Scottsdale Ins. Co., 286 AD2d 679 [2001]). In light of the foregoing, there is a triable issue of fact as to whether this action is premature (see Healing Health Prods., Inc. v. New York Cent. Mut. Fire Ins. Co., 44 Misc 3d 59 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.Iseman, Cunningham, Riester & Hyde, LLP, for respondent (no brief filed).2015-363 K C. CAREFUL COMPLETE MED., P.C. v. HARTFORD INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 11, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with $25 costs.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).Contrary to plaintiff’s contention, the affirmation submitted by defendant’s attorney, who was present in his office to conduct plaintiff’s EUOs on the scheduled dates, was sufficient to establish that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). In addition, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that EUO scheduling letters and the denial of claim forms at issue had been properly mailed (see St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]).Accordingly, the order is affirmed.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant. Brand, Glick & Brand, P.C. (Jason P. Bertuna, Esq.), for respondent.2015-379 K C. ACTIVE CARE MED. SUPPLY CORP. v. ELRAC, INC. — Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 8, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with $25 costs.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).Contrary to plaintiff’s sole contention, the affidavit submitted by the doctor who was to perform the IMEs was sufficient to establish that plaintiff had failed to appear for the IMEs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]).Accordingly, the order is affirmed.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant.Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).2015-398 K C. Z.M.S. & Y ACUPUNCTURE, P.C. v. GEICO GEN. INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 17, 2014. The order, insofar as appealed from and as limited by the brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814.ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97811, 97813 and 97814 are granted; 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, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. As to so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814, the Civil Court, by order entered December 17, 2014, limited the issues for trial, pursuant to CPLR 3212 (g), to the proper application of the fee schedule. Defendant appeals, as limited by its brief, from so much of the order as denied the branches of its cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814. The proof submitted by defendant in support of its cross motion was sufficient to demonstrate that it had fully paid plaintiff for the services billed under CPT codes 97811, 97813 and 97814 in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v. Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). As defendant’s prima facie showing was not rebutted by plaintiff, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment on these claims, the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97811, 97813 and 97814 should have been granted.However, defendant failed to establish, as a matter of law, that it had properly paid plaintiff for the services billed under CPT code 97810, as defendant did not explain its apparent recoding of those services (see Rogy Med., P.C. v. Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97811, 97813 and 97814 are granted.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant.Law Office Emilia I. Rutigliano, P.C., for respondent (no brief filed).2015-402 K C. Z.M.S. & Y ACUPUNCTURE, P.C. v. GEICO GEN. INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 17, 2014. The order, insofar as appealed from and as limited by the brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814.ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97811, 97813 and 97814 are granted; 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, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. As to so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814, the Civil Court, by order entered December 17, 2014, limited the issues for trial, pursuant to CPLR 3212 (g), to the proper application of the fee schedule. Defendant appeals, as limited by its brief, from so much of the order as denied the branches of its cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814.For the reasons stated in Z.M.S. & Y Acupuncture, P.C., as Assignee of Famojuro, Olajumoke v. GEICO Gen. Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op ______ [appeal No. 2015-398 K C], decided herewith), the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97811, 97813 and 97814 are granted.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant.Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).2015-410 K C. Z.M.S. & Y ACUPUNCTURE, P.C. v. GEICO GEN. INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Ingrid Joseph, J.), entered December 4, 2014. The order, insofar as appealed from and as limited by the brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814.ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97811, 97813 and 97814 are granted; 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, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. As to so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814, the Civil Court, by order entered December 4, 2014, limited the issues for trial, pursuant to CPLR 3212 (g), to the proper application of the fee schedule. Defendant appeals, as limited by its brief, from so much of the order as denied the branches of its cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814.For the reasons stated in Z.M.S. & Y Acupuncture, P.C., as Assignee of Famojuro, Olajumoke v. GEICO Gen. Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op ______ [appeal No. 2015-398 K C], decided herewith), the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97811, 97813 and 97814 are granted.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant. Law Office of Emilia I. Rutigliano, P.C., for respondent (no brief filed).2015-432 K C. OLEG’S ACUPUNCTURE, P.C. v. GEICO GEN. INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 9, 2014. The order, insofar as appealed from and as limited by the brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97813 and 97814.ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97813 and 97814 are granted.In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals, as limited by its brief, from so much an order of the Civil Court as denied the branches of defendant’s cross motion which sought summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97813 and 97814 on the ground that defendant had fully paid plaintiff for those services in accordance with the workers’ compensation fee schedule.The proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the denial of claim forms at issue had been timely mailed (see St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also demonstrated that it had fully paid plaintiff for the services billed under CPT codes 97813 and 97814 in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v. GEICO Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Plaintiff failed to raise a triable issue of fact in opposition.Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97813 and 97814 are granted.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant.Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).2015-451 K C. Z.M.S. & Y ACUPUNCTURE, P.C. v. GEICO GEN. INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 17, 2014. The order, insofar as appealed from and as limited by the brief, denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814.ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97811, 97813 and 97814 are granted; 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, and defendant cross-moved for summary judgment dismissing the complaint on the ground that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. As to so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814, the Civil Court, by order entered December 17, 2014, limited the issues for trial, pursuant to CPLR 3212 (g), to the proper application of the fee schedule. Defendant appeals, as limited by its brief, from so much of the order as denied the branches of its cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97810, 97811, 97813 and 97814.For the reasons stated in Z.M.S. & Y Acupuncture, P.C., as Assignee of Famojuro, Olajumoke v. GEICO Gen. Ins. Co. (____ Misc 3d ____, 2017 NY Slip Op ______ [appeal No. 2015-398 K C], decided herewith), the order, insofar as appealed from, is modified by providing that the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon claims for services billed under CPT codes 97811, 97813 and 97814 are granted.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Gary Tsirelman, P.C. (David M. Gottlieb, Esq.), for appellant.Rivkin Radler, LLP (Stuart M. Bodoff, Esq.), for respondent (no brief filed).2015-501 Q C. HEALTHY WAY ACUPUNCTURE, P.C. v. STATE FARM MUT. AUTO. INS. CO. — Appeal from an order of the Civil Court of the City of New York, Queens County (Maureen A. Healy, J.), entered July 11, 2013. The order, insofar as appealed from as limited by the brief, granted defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals, as limited by its brief, from so much of an order of the Civil Court as granted defendant’s motion for summary judgment dismissing the complaint based on plaintiff’s failure to appear for duly scheduled examinations under oath (EUOs).Contrary to plaintiff’s contention, defendant sufficiently established plaintiff’s failure to appear for two scheduled EUOs (see e.g. T & J Chiropractic, P.C. v. State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Plaintiff’s remaining contentions lack merit (see Interboro Ins. Co. v. Clennon, 113 AD3d 596 [2014]; Palafox PT, P.C. v. State Farm Mut. Auto. Ins. Co., 49 Misc 3d 144[A], 2015 NY Slip Op 51653[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; T & J Chiropractic, P.C., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U]).Accordingly, the order, insofar as appealed from, is affirmed.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.Marshall & Marshall, PLLC (Naim M. Peress, Esq.), for respondent.2015-861 Q C. GL ACUPUNCTURE, P.C. v. MVAIC — Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered April 1, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with $25 costs.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted a motion by defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) for summary judgment dismissing the complaint.Contrary to plaintiff’s sole contention, MVAIC established that there had been no timely filing of a notice to make claim (see Insurance Law §5208 [a]) and, thus, that plaintiff’s assignor is not a “covered person” (Insurance Law §5221 [b] [2]). Consequently, a condition precedent to plaintiff’s right to apply for payment of no-fault benefits from defendant has not been satisfied (see M.N.M. Med. Health Care, P.C. v. MVAIC, 22 Misc 3d 128[A], 2009 NY Slip Op 50041[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]; Bell Air Med. Supply, LLC v. MVAIC, 16 Misc 3d 135[A], 2007 NY Slip Op 51607[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]).Accordingly the order is affirmed.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Gary Tsirelman, P.C. (Irena Golodkeyer, Esq.), for appellant.McGivney and Kluger, P.C., for respondent (no brief filed).2015-896 K C. CAREFUL COMPLETE MED., P.C. v. DELOS INS. CO. — Appeal from a judgment of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered November 21, 2014. The judgment, entered pursuant to an order of that court entered May 23, 2012 granting defendant’s motion for summary judgment, dismissed the complaint.ORDERED that the judgment is reversed, with $30 costs, the order entered May 23, 2012 is vacated, and defendant’s motion for summary judgment dismissing the complaint is denied.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from a judgment of the Civil Court which dismissed the complaint pursuant to a prior order of that court granting a motion by defendant for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).Plaintiff correctly argues on appeal that defendant failed to demonstrate that it was entitled to summary judgment dismissing the complaint based on the failure to appear for EUOs, as the initial EUO request had been sent more than 30 days after defendant had received the claims at issue and, therefore, the requests were nullities as to those claims (see Neptune Med. Care, P.C. v. Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v. Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).Accordingly, the judgment is reversed, the order entered May 23, 2012 is vacated, and defendant’s motion for summary judgment dismissing the complaint is denied.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.Carman, Callahan & Ingham, LLP (Joshua Copperman, Esq.), for respondent.2015-947 Q C. MASIGLA v. ELRAC, INC. — Appeal from an order of the Civil Court of the City of New York, Queens County (Mojgan Cohanim Lancman, J.), entered March 5, 2015. The order, insofar as appealed from, granted the branches of defendant’s motion seeking summary judgment dismissing the third, fifth and seventh causes of action.ORDERED that the order, insofar as appealed from, is affirmed, with $25 costs.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from so much of an order of the Civil Court as granted the branches of defendant’s motion seeking summary judgment dismissing the third, fifth and seventh causes of action.Contrary to plaintiff’s sole contention on appeal, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the denial of claims forms had been timely mailed (see St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]).Accordingly, the order, insofar as appealed from, is affirmed.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Gary Tsirelman, P.C. (Darya Klein, Esq.), for appellant.Miller, Leiby & Associates, P.C. (Melissa M. Wolin, Esq.), for respondent.2015-962 K C. VILLAGE MED. SUPPLY, INC. v. CITIWIDE AUTO LEASING INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Carol Ruth Feinman, J.), entered December 10, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with $25 costs.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).Contrary to plaintiff’s contentions, the affirmation defendant submitted from the doctor who was to perform the IMEs of plaintiff’s assignor was sufficient to establish that plaintiff’s assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]), and defendant established that the denial of claim forms which denied plaintiff’s claims on that ground had been timely mailed (see St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Furthermore, plaintiff’s argument regarding the tolling of defendant’s time to pay or deny the claim lacks merit (see Alev Med. Supply, Inc. v. New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; cf. Westchester County Med. Ctr. v. New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]). Plaintiff’s remaining contention is similarly without merit.Accordingly, the order is affirmed.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Gullo & Associates, LLC (Natalie Socorro, Esq.), for appellant.Gary Tsirelman, P.C. (Stephen Gurfinkel, Esq.), for respondent.2015-965 K C. BRONX ACUPUNCTURE THERAPY, P.C. v. A. CENTRAL INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 8, 2015. The order denied defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is granted.In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court denying defendant’s motion which sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations (IMEs).In support of its motion, defendant submitted an affidavit by the operations manager of Transcion Medical, P.C., which had been retained by defendant to schedule IMEs, which affidavit sufficiently established that the IME scheduling letters had been timely mailed (see St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also established that the assignor had failed to appear for the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Thus, defendant demonstrated that plaintiff had failed to comply with a condition precedent to coverage (id. at 722). As defendant’s moving papers established that defendant had timely denied (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123) the claims on that ground, and plaintiff failed to raise a triable issue of fact in opposition to defendant’s motion, defendant was entitled to summary judgment dismissing the complaint.Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is granted.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Gary Tsirelman, P.C. (Douglas Mace, Esq.), for appellant.Law Office of Lawrence R. Miles (Thomas Wolf, Esq.), for respondent.2015-976 K C. ACUHEALTH ACUPUNCTURE, P.C. v. HEREFORD INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 28, 2015. The order, insofar as appealed from as limited by the brief, granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 97039 and denied the branch of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover for those services.ORDERED that the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 97039 is denied; 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, defendant moved for summary judgment dismissing the complaint, arguing that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule. Plaintiff cross-moved for summary judgment. The Civil Court granted defendant’s motion in its entirety and denied plaintiff’s cross motion. As limited by its brief, plaintiff appeals from so much of the Civil Court’s order as granted the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 97039 and denied the branch of plaintiff’s cross motion seeking summary judgment on so much of the complaint as sought to recover for those services.It is undisputed that defendant denied plaintiff’s claim for services billed under CPT code 97039 in its entirety. The workers’ compensation fee schedule does not assign a relative value to this code, but instead has assigned it a “By Report” designation, which requires a provider to furnish certain additional documentation to enable the insurer to determine the appropriate amount of reimbursement. Defendant’s denial is based upon plaintiff’s failure to provide such documentation with its claim form. However, as defendant failed to demonstrate upon its motion that it had requested any additional verification from plaintiff seeking the information it required in order to review plaintiff’s claims for services billed under CPT code 97039, defendant was not entitled to summary judgment dismissing so much of the complaint as sought to recover for services rendered under that code (see Gaba Med., P.C. v. Progressive Specialty Ins. Co., 36 Misc 3d 139[A], 2012 NY Slip Op 51448[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]; see generally Rogy Med., P.C. v. Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]).As plaintiff failed to demonstrate that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v. Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]), plaintiff failed to establish its prima facie entitlement to judgment as a matter of law with respect to that claim. Consequently, the branch of plaintiff’s cross motion seeking summary judgment upon that claim was properly denied.Accordingly, the order, insofar as appealed from, is modified by providing that the branch of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT code 97039 is denied.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Kopelevich & Feldsherova, P.C. (Galina Feldsherova, Esq.), for appellant.Brand, Glick & Brand, P.C., for respondent (no brief filed).2015-978 K C. EASTCOAST METRO. MED., P.C. v. ELRAC, INC. — Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered November 21, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).Plaintiff correctly argues that defendant failed to establish, as a matter of law, that it had sent the EUO scheduling letters to the assignor’s correct address (see St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]). In light of this finding, we need not reach plaintiff’s remaining contentions.Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt, Esq.), for appellant.Law Offices of Peter C. Merani, P.C. (Josh Youngman, Esq.), for respondent.2015-994 K C. MEDICAL RECORDS RETRIEVAL, INC. v. ALLSTATE INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 30, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.ORDERED that the order is affirmed, with $25 costs.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.Plaintiff’s arguments in opposition to defendant’s motion for summary judgment are not properly before this court as they are being raised for the first time on appeal, and we decline to consider them (see Joe v. Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Gulf Ins. Co. v. Kanen, 13 AD3d 579 [2004]; Mind & Body Acupuncture, P.C. v. Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, plaintiff has demonstrated no basis to disturb the order which granted defendant’s motion and denied plaintiff’s cross motion.Accordingly, the order is affirmed.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Kopelevich & Feldsherova, P.C. (Galina Feldsherova, P.C.), for appellant.Brand, Glick & Brand, P.C., for respondent (no brief filed).2015-996 K C. B.S.A. CHIROPRACTIC, P.C. v. ELRAC, INC. — Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered November 21, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath.For the reasons stated in Eastcoast Metro. Med., P.C., as Assignee of Jesse Ferraro v. ELRAC, Inc. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-978 K C], decided herewith), the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Gary Tsirelman, P.C. (Douglas Mace, Esq.), for appellant.Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.2015-1014 K C. CANON CHIROPRACTIC, P.C. v. METLIFE INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 19, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is reversed, with $30 costs, and defendant’s motion for summary judgment dismissing the complaint is denied.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).Plaintiff correctly argues on appeal that defendant failed to submit proof by someone with personal knowledge of plaintiff’s assignor’s nonappearance at the scheduled EUOs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Bright Med. Supply Co. v. IDS Prop. & Cas. Ins. Co., 40 Misc 3d 130[A], 2013 NY Slip Op 51123[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]; Alrof, Inc. v. Safeco Natl. Ins. Co., 39 Misc 3d 130[A], 2013 NY Slip Op 50458[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).Accordingly, the order is reversed and defendant’s motion for summary judgment dismissing the complaint is denied.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Kopelevich & Feldsherova, P.C. (Galina Feldsherova, Esq.), for appellant.The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for respondent.2015-1031 K C. SILVER ACUPUNCTURE, P.C. v. GEICO — Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered January 9, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint 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 and defendant cross-moved for summary judgment dismissing the complaint. The Civil Court denied plaintiff’s motion and granted defendant’s cross motion on the ground that plaintiff had failed to appear for examinations under oath (EUOs).Upon a review of the record, we find that defendant’s cross motion failed to establish, as a matter of law, that defendant had timely denied plaintiff’s claims after plaintiff had failed to appear at both an initial and a follow-up EUO (see Westchester Med. Ctr. v. Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]; Avicenna Med. Arts, P.L.L.C. v. Ameriprise Auto & Home, 47 Misc 3d 145[A], 2015 NY Slip Op 50701[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; DVS Chiropractic, P.C. v. Interboro Ins. Co., 36 Misc 3d 138[A], 2012 NY Slip Op 51443[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). As defendant did not demonstrate that it is not precluded from raising its proffered defense, defendant’s cross motion for summary judgment dismissing the complaint should have been denied.Contrary to plaintiff’s contention, plaintiff failed to establish its prima facie entitlement to summary judgment, as the proof it submitted failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denial of claim forms that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v. Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt, Esq.), for appellant.Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.2015-1069 K C. MOON REHAB, P.T., P.C. v. AMERIPRISE INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered March 4, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.ORDERED that the order is affirmed, with $25 costs.In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for examinations under oath (EUOs), and plaintiff cross-moved for summary judgment. By order entered March 4, 2015, the Civil Court granted defendant’s motion and denied plaintiff’s cross motion.Contrary to plaintiff’s contentions, the proof submitted by defendant in support of its motion was sufficient to give rise to a presumption that the EUO scheduling letters and the denial of claims form had been timely mailed (see St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]), and to demonstrate that plaintiff had failed to appear for the EUOs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).Accordingly, the order is affirmed.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Gary Tsirelman, P.C. (Darya Klein, Esq.), for appellant.Jeffery Miller & Associates (Stacia Ury, Esq.), for respondent (no brief filed).2015-1085 K C. PUGSLEY CHIROPRACTIC, PLLC v. CITIWIDE AUTO LEASING, INC. — Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered January 30, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with $25 costs.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations.For the reasons stated in Village Med. Supply, Inc., as Assignee of Stephane Philogene v. Citiwide Auto Leasing Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-962 K C], decided herewith), the order is affirmed.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Gary Tsirelman, P.C. (Irena Golodkeyer, Esq.), for appellant.Law Offices of Buratti, Rothenberg & Burns (Sharon Brennan, Esq.), for respondent.2015-1090 K C. EASY CARE ACUPUNCTURE, P.C. v. 21 CENTURY ADVANTAGE INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Theresa M. Ciccotto, J.), entered February 5, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with $25 costs.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint based on plaintiff’s assignor’s failure to appear for duly scheduled examinations under oath (EUOs).Contrary to plaintiff’s argument, the proof submitted by defendant was sufficient to demonstrate that plaintiff’s assignor had failed to appear for the scheduled EUOs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]; Active Chiropractic, P.C. v. Praetorian Ins. Co., 43 Misc 3d 134[A], 2014 NY Slip Op 50634[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).Plaintiff’s remaining contention lacks merit (see e.g. T & J Chiropractic, P.C. v. State Farm Mut. Auto. Ins. Co., 47 Misc 3d 130[A], 2015 NY Slip Op 50406[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; Metro Health Prods., Inc. v. State Farm Mut. Auto. Ins. Co., 47 Misc 3d 127[A], 2015 NY Slip Op 50402[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).Accordingly, the order is affirmed.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Miller, Leiby & Associates, P.C. (Melissa M. Wolin, Esq.), for appellant.Law Offices of Melissa Betancourt, P.C. (Melissa Betancourt, Esq.), for respondent.2015-1091 K C. LONGEVITY MED. SUPPLY, INC. v. CITIWIDE AUTO LEASING — Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered May 6, 2015. The order denied defendant’s motion for summary judgment dismissing the complaint and granted plaintiff’s cross motion for summary judgment.ORDERED that the order is reversed, with $30 costs, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from an order of the Civil Court which denied defendant’s motion which had sought summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for scheduled independent medical examinations (IMEs), and granted plaintiff’s cross motion for summary judgment.In support of its motion, defendant established that, before it had received the claim at issue, it had mailed letters scheduling an initial and follow-up IME (see St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant also established that the assignor had failed to appear for the scheduled IMEs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Defendant further demonstrated that, upon receipt of the claim at issue, it had timely mailed initial and follow-up requests for written verification (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123). Finally, defendant established that, upon receiving the requested verification, it had timely denied the claim at issue based upon the assignor’s failure to appear for IMEs (see St. Vincent’s Hosp. of Richmond, 50 AD3d 1123; Alev Med. Supply, Inc. v. New York Cent. Mut. Fire Ins. Co., 38 Misc 3d 143[A], 2013 NY Slip Op 50258[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]). Plaintiff failed to raise a triable issue of fact in opposition.Accordingly, the order is reversed, defendant’s motion for summary judgment dismissing the complaint is granted and plaintiff’s cross motion for summary judgment is denied.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Nightingale Law, P.C. (Michael S. Nightingale, Esq.), for appellant.Gary Tsirelman, P.C. (Irena Golodkeyer, Esq.), for respondent.2015-1094 K C. V.S. CARE ACUPUNCTURE, P.C. v. NY CENT. MUT. FIRE INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Pamela L. Fisher, J.), entered February 4, 2015. The order, insofar as appealed from, denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered from October 19, 2009 through February 19, 2010.ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s motion seeking summary dismissing so much of the complaint as sought to recover for services rendered from October 19, 2009 through February 19, 2010 are granted.In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered from October 19, 2009 through February 19, 2010.Defendant’s motion papers established the proper mailing of the denial of claim forms at issue (see St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Furthermore, defendant made a prima facie showing that the amount plaintiff sought to recover for services rendered from October 19, 2009 through February 19, 2010 was in excess of the amount permitted by the applicable workers’ compensation fee schedule. In opposition, plaintiff failed to proffer evidence in admissible form sufficient to raise a triable issue of fact with respect to defendant’s fee schedule defense.Accordingly, the order, insofar as appealed from, is reversed and the branches of defendant’s motion seeking summary dismissing so much of the complaint as sought to recover for services rendered from October 19, 2009 through February 19, 2010 are granted.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for appellant.Law Offices of Emilia I. Rutigliano, P.C., for respondent (no brief filed).2015-1108 K C. NOVA CHIROPRACTIC SERVS., P.C. v. AMERIPRISE AUTO & HOME — Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), dated January 13, 2015. The order granted plaintiff’s motion for summary judgment and denied defendant’s cross motion for summary judgment dismissing the complaint.ORDERED that the order is reversed, with $30 costs, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.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 on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs). By order dated January 13, 2015, the Civil Court granted plaintiff’s motion and denied defendant’s cross motion.The record establishes that defendant had timely mailed both the EUO scheduling letters and the denial of claim forms at issue (see St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]; see also 11 NYCRR 65-3.8 [l]), and that plaintiff had failed to appear for the duly scheduled EUOs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Plaintiff failed to raise an issue of fact in opposition to defendant’s cross motion.Accordingly, the order is reversed, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Gary Tsirelman, P.C. (Darya Klein, Esq.), for appellant.Miller, Leiby & Associates, P.C. (Melissa M. Wolin, Esq.), for respondent.2015-1179 K C. PUGSLEY CHIROPRACTIC, PLLC v. CITIWIDE AUTO LEASING, INC. — Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered December 19, 2014. The order granted defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with $25 costs.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations.For the reasons stated in Village Med. Supply, Inc., as Assignee of Stephane Philogene v. Citiwide Auto Leasing Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-962 K C], decided herewith), the order is affirmed.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.Sweetbaum & Sweetbaum, Esqs. (Marshall D. Sweetbaum, Esq.), for respondent.2015-1180 Q C. RENELIQUE v. ALLSTATE INS. CO. — Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered April 17, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint 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 appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.Plaintiff correctly argues on appeal that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As defendant did not demonstrate that it is not precluded from asserting its proffered defense—that the amounts plaintiff sought to recover were in excess of the workers’ compensation fee schedule—defendant is not entitled to summary judgment dismissing the complaint.However, contrary to plaintiff’s contention, the affidavit plaintiff submitted in support of its motion failed to establish that the claim at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued a timely denial of claim that was conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v. Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). As a result, plaintiff’s motion for summary judgment was properly denied.Accordingly, the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.Sweetbaum & Sweetbaum, Esqs. (Marshall D. Sweetbaum, Esq.), for respondent.2015-1208 Q C. RENELIQUE v. ALLSTATE INS. CO. — Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered April 20, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.ORDERED that the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint 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 appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.For the reasons stated in Renelique, as Assignee of Audley Noyan v. Allstate Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-1180 Q C], decided herewith), the order is modified by providing that defendant’s cross motion for summary judgment dismissing the complaint is denied.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Gary Tsirelman, P.C. (Darya Klein, Esq.), for appellant.Miller, Leiby & Associates, P.C. (Melissa M. Wolin, Esq.), for respondent.2015-1223 K C. AEE MED. DIAGNOSTIC, P.C. v. CITIWIDE AUTO LEASING, INC. — Appeal from an order of the Civil Court of the City of New York, Kings County (Reginald A. Boddie, J.), entered March 6, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with $25 costs.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled independent medical examinations.For the reasons stated in Village Med. Supply, Inc., as Assignee of Stephane Philogene v. Citiwide Auto Leasing Ins. Co. (__ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-962 K C], decided herewith), the order is affirmed.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Nightingale Law, P.C. (Michael S. Nightingale, Esq.), for appellant.The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent.2015-1242 K C. CHARLES DENG ACUPUNCTURE, P.C. v. NEW YORK CENT. MUT. FIRE INS. CO. — Appeal from an order of the Civil Court of the City of New York Kings County (Carol Ruth Feinman, J.), entered February 17, 2015. The order, insofar as appealed from, denied defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portion of claims for services rendered from May 22, 2012 to June 22, 2012, June 27, 2012 to July 13, 2012, July 25, 2012 to August 24, 2012, and August 29, 2012 to October 24, 2012 are granted; 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, defendant moved for summary judgment dismissing the complaint, arguing that it had either paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule or had denied the claims on the ground of lack of medical necessity. Insofar as is relevant to this appeal, the Civil Court denied defendant’s motion but held, in effect pursuant to CPLR 3212 (g), that the only remaining issues for trial were medical necessity and the reduction of plaintiff’s claims in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors.With respect to plaintiff’s claims seeking to recover for services rendered from May 22, 2012 to June 22, 2012, June 27, 2012 to July 13, 2012, July 25, 2012 to August 24, 2012, and August 29, 2012 to October 24, 2012, defendant demonstrated that it had fully paid plaintiff for the services in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v. Geico Ins. Co., 26 Misc 3d 23, 24 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). As defendant’s prima facie showing was not rebutted by plaintiff, and as plaintiff has not challenged the Civil Court’s finding, in effect, that defendant is otherwise entitled to judgment on these claims, the Civil Court should have granted the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon those claims. Defendant’s contention with respect to the amount at issue on the two remaining claims lacks merit.Defendant fails to articulate a sufficient basis to strike the Civil Court’s CPLR 3212 (g) findings in plaintiff’s favor (see EMC Health Prods., Inc. v. Geico Ins. Co., 43 Misc 3d 139[A], 2014 NY Slip Op 50786[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2014]).Accordingly, the order, insofar as appealed from, is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the unpaid portion of claims for services rendered from May 22, 2012 to June 22, 2012, June 27, 2012 to July 13, 2012, July 25, 2012 to August 24, 2012, and August 29, 2012 to October 24, 2012 are granted.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.2015-1528 Q C. MASIGLA v. COUNTRY WIDE INS. CO. — Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered April 29, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with $25 costs.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that defendant had not received timely notice of the accident.Contrary to plaintiff’s argument, the proof submitted by defendant in support of its cross motion was sufficient to give rise to a presumption that the denial of claim forms at issue had been properly mailed (see St.Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Plaintiff’s remaining argument with respect to defendant’s cross motion is not properly before this court, as it is being raised for the first time on appeal, and we decline to consider it (see Joe v. Upper Room Ministries, Inc., 88 AD3d 963 [2011]; Mind & Body Acupuncture, P.C. v. Elrac, Inc., 48 Misc 3d 139[A], 2015 NY Slip Op 51219[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]).Accordingly, the order is affirmed.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.Jaffe & Koumourdas, LLP (Jean H. Kang, Esq.), for respondent.2015-1530 Q C. MASIGLA v. COUNTRY WIDE INS. CO. — Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered May 1, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with $25 costs.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that defendant had not received timely notice of the accident.For the reasons stated in Masigla, as Assignee of Cadet, Daniel v. Country Wide Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-1528 Q C], decided herewith), the order is affirmed.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.Law Offices of Aloy O. Ibuzor (William Angstreich, Esq.), for respondent.2015-1545 Q C. COMPAS v. TRAVELERS INS. CO. — Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor), entered May 6, 2015. The order granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for examinations under oath.ORDERED that the order is reversed, with $30 costs, the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for examinations under oath is denied, and the matter is remitted to the Civil Court to determine the undecided branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification.In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment dismissing the complaint on the grounds that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) and had failed to provide verification which defendant had requested. By order entered May 6, 2015, the Civil Court granted the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs) without addressing defendant’s contention that it was entitled to summary judgment due to plaintiff’s failure to provide requested verification.Plaintiff correctly argues that defendant failed to submit proof by someone with personal knowledge attesting to plaintiff’s failure to appear for EUOs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Consequently, the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled EUOs should have been denied.As the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification was never addressed by the Civil Court, we remit the matter to the Civil Court to determine that branch of defendant’s motion.Accordingly, the order is reversed, the branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for EUOs is denied, and the matter is remitted to the Civil Court to determine the undecided branch of defendant’s motion seeking summary judgment dismissing the complaint on the ground that plaintiff had failed to provide requested verification.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant.Law Offices of Ilona Finkelshteyn, P.C., for respondent (no brief filed).2015-1563 K C. Z. M. S. & Y ACUPUNCTURE, P.C. v. GEICO GEN. INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered April 17, 2015. The order, insofar as appealed from, denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97811, 97813 and 97814.ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97811, 97813 and 97814 are granted.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. Defendant appeals from so much of an order of the Civil Court as denied the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97811, 97813 and 97814.Defendant demonstrated that it had fully paid plaintiff for the services at issue in accordance with the workers’ compensation fee schedule for acupuncture services performed by chiropractors (see Great Wall Acupuncture, P.C. v. Geico Ins. Co., 26 Misc 3d 23 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Since the services here were rendered after April 1, 2013, the defense that the amounts sought to be recovered exceed the amount permitted by the workers’ compensation fee schedule is not subject to preclusion (see 11 NYCRR 65-3.8 [g] [eff Apr. 1, 2013]; Surgicare Surgical Assoc. v. National Interstate Ins. Co., 50 Misc 3d 85 [App Term, 1st Dept 2015]). As plaintiff failed to rebut defendant’s showing, the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon these claims should have been granted.Accordingly, the order, insofar as appealed from, is reversed, and the branches of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services billed under CPT codes 97811, 97813 and 97814 are granted.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Gabriel & Shapiro, LLC (Steven F. Palumbo, Esq.), for appellant.Bruno, Gerbino & Soriano, LLP (Mitchell L. Kaufman, Esq.), for respondent.2015-1619 K C. RECOVER MED. SERVS., P.C. v. AMERIPRISE INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Steven Z. Mostofsky, J.), entered May 5, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint.ORDERED that the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on bills received by defendant between January 26, 2012 and March 8, 2012 are 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 appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff’s assignor had failed to appear for duly scheduled examinations under oath (EUOs).Plaintiff correctly argues on appeal that defendant failed to demonstrate that it was entitled to summary judgment dismissing so much of the complaint as sought to recover on bills received by defendant between January 26, 2012 and March 8, 2012, as the EUO requests at issue had been sent more than 30 days after defendant had received those bills, and, therefore, the requests were nullities with respect to those bills (see Neptune Med. Care, P.C. v. Ameriprise Auto & Home Ins., 48 Misc 3d 139[A], 2015 NY Slip Op 51220[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]; O & M Med., P.C. v. Travelers Indem. Co., 47 Misc 3d 134[A], 2015 NY Slip Op 50476[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2015]). Consequently, the branches of defendant’s motion seeking summary judgment dismissing those portions of the complaint should have been denied.With respect to the remaining three bills, there is no merit to plaintiff’s argument that, pursuant to 11 NYCRR 65-3.6 (b), defendant was required to send plaintiff’s attorney a delay letter upon sending the follow-up EUO scheduling letter to plaintiff. The requirement to send a delay letter arises only where the verification is sought from a person or entity other than the plaintiff (see Advantage Radiology, P.C. v. Nationwide Mut. Ins. Co., 55 Misc 3d 91 [App Term, 2d Dept, 9th & 10th Jud Dists 2017]; see also GNK Med. Supply, Inc. v. Tri-State Consumer Ins. Co., 37 Misc 3d 138[A], 2012 NY Slip Op 52195[U] [App Term, 1st Dept 2012]). Here, where defendant sought plaintiff’s EUO, there was no such requirement.Accordingly, the order is modified by providing that the branches of defendant’s motion seeking summary judgment dismissing so much of the complaint as sought to recover on bills received by defendant between January 26, 2012 and March 8, 2012 are denied.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Marshall & Marshall, PLLC (Naim M. Peress, Esq.), for appellant.Law Offices of Emilia I. Rutigliano, P.C., for respondent (no brief filed).2015-1635 K C. CLINTON PLACE MED., P.C. v. MVAIC — Appeal from an order of the Civil Court of the City of New York, Kings County (Robin Kelly Sheares, J.), entered April 24, 2015, deemed from a judgment of the same court entered January 26, 2016 (see CPLR 5501 [c]). The judgment, entered pursuant to the April 24, 2015 order granting plaintiff’s motion for summary judgment and denying defendant’s cross motion for summary judgment dismissing the complaint, awarded plaintiff the principal sum of $3,652.81.ORDERED that the judgment is reversed, with $30 costs, the order entered April 24, 2015 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.In this action by a provider to recover assigned first-party no fault benefits, plaintiff moved for summary judgment, and defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) cross-moved for summary judgment dismissing the complaint on the ground that the action had been commenced after the statute of limitations had expired. The Civil Court granted plaintiff’s motion and denied defendant’s cross motion. Defendant’s appeal from the order is deemed from the judgment that was subsequently entered (see CPLR 5501 [c]).MVAIC’s cross motion papers established, prima facie, that the action had been commenced after the expiration of the three-year statute of limitations (see Kings Highway Diagnostic Imaging, P.C. v. MVAIC, 19 Misc 3d 69 [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; see also 6D Farm Corp. v. Carr, 63 AD3d 903 [2009]; Island ADC, Inc. v. Baldassano Architectural Group, P.C., 49 AD3d 815 [2008]). In opposition, plaintiff failed to raise an issue of fact as to the action’s timeliness (see New York Hosp. Med. Ctr. of Queens v. Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004]; Precision Radiology Servs., P.C. v. MVAIC, 34 Misc 3d 126[A], 2011 NY Slip Op 52274[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]).Accordingly, the judgment is reversed, the order entered April 24, 2015 is vacated, plaintiff’s motion for summary judgment is denied and defendant’s cross motion for summary judgment dismissing the complaint is granted.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017Marshall & Marshall, PLLC (Naim M. Peress, Esq.), for appellant.The Rybak Firm, PLLC (Damin J. Toell, Esq.), for respondent.2015-1732 Q C. TAM MED. SUPPLY CORP. v. MVAIC — Appeal from an order of the Civil Court of the City of New York, Queens County (Mojgan Cohanim Lancman, J.), entered March 4, 2015. The order, insofar as appealed from, denied defendant’s cross motion for summary judgment dismissing the complaint.ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and defendant’s cross motion for summary judgment dismissing the complaint is granted.In this action by a provider to recover assigned first-party no-fault benefits, defendant Motor Vehicle Accident Indemnification Corporation (sued herein as MVAIC) appeals from so much of an order of the Civil Court as denied defendant’s cross motion for summary judgment dismissing the complaint.Since plaintiff and its assignor were aware of the identity of the owner of the vehicle which had struck plaintiff’s assignor, plaintiff, as assignee, was required to exhaust its remedies against the vehicle’s owner before seeking relief from MVAIC (see Hauswirth v. American Home Assur. Co., 244 AD2d 528 [1997]; Modern Art Med., P.C. v. MVAIC, 22 Misc 3d 126[A], 2008 NY Slip Op 52586[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; Doctor Liliya Med., P.C. v. MVAIC, 21 Misc 3d 143[A], 2008 NY Slip Op 52453[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]). Here, plaintiff did not demonstrate that it had exhausted its remedies against the owner of the vehicle (see Right Aid Diagnostic Medicine, P.C. v. MVAIC, 41 Misc 3d 126[A], 2013 NY Slip Op 51582 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2013]).Accordingly, the order, insofar as appealed from, is reversed and defendant’s cross motion for summary judgment dismissing the complaint is granted.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant.Law Office of Emilia I. Rutigliano, P.C. (Emilia I. Rutigliano, Esq.), for respondent.2015-1734 Q C. STATEN IS. ADVANCED SURGICAL SUPPLY v. GEICO INS. CO. — Appeal from a judgment of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered February 6, 2015. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,698.30.ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.In this action by a provider to recover assigned first-party no-fault benefits for medical supplies it had provided to its assignor, defendant appeals from a judgment which, after a nonjury trial, awarded plaintiff the principal sum of $1,698.30.At the trial in this case, which was limited to defendant’s defense of lack of medical necessity (see CPLR 3212 [g]), defendant was prepared to proffer the testimony of a medical expert who had not written the peer review report upon which defendant’s denial of the claim at issue was based. As the author of the peer review report was not present to authenticate it, the Civil Court found that the report could not be admitted into evidence and, therefore, could not be used to limit defendant’s expert witness’s testimony to the basis for the denial as set forth in the report. Consequently, the Civil Court precluded defendant’s expert from testifying and granted plaintiff’s motion for a directed verdict.Defendant’s expert medical witness should have been permitted to testify as to her opinion as to the lack of medical necessity of the supplies at issue, even though she was not the person who had prepared the peer review report (see Park Slope Med. & Surgical Supply, Inc. v. Progressive Ins. Co., 34 Misc 3d 154[A], 2012 NY Slip Op 50349[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). Moreover, an appropriate objection by plaintiff was all that would have been needed in the event the testimony of defendant’s expert witness went beyond the scope of the peer review report (see Promed Orthocare Supply, Inc. v. Geico Ins. Co., 57 Misc 3d 135[A], 2017 NY Slip Op 51264[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2017]).Accordingly, the judgment is reversed and the matter is remitted to the Civil Court for a new trial.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant.Law Office of Emilia I. Rutigliano, P.C. (Emilia I. Rutigliano, Esq.), for respondent.2015-1737 Q C. ALUR MED. SUPPLY, INC. v. GEICO INS. CO. — Appeal from a judgment of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered December 9, 2014. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,937.ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.In this action by a provider to recover assigned first-party no-fault benefits for medical supplies it had provided to its assignor, defendant appeals from a judgment of the Civil Court which, after a nonjury trial, awarded plaintiff the principal sum of $1,937.For the reasons stated in Staten Is. Advanced Surgical Supply, as Assignee of Gu Zhang v. GEICO Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-1734 Q C], decided herewith), the judgment is reversed and the matter is remitted to the Civil Court for a new trial.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant.Law Offices of Emilia I. Rutigliano, P.C. (Emilia I. Rutigliano, Esq.), for respondent.2015-1738 Q C. ALUR MED. SUPPLY, INC. v. GEICO INS. CO. — Appeal from a judgment of the Civil Court of the City of New York, Queens County (Larry Love, J.), entered December 9, 2014. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $740.25.ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.In this action by a provider to recover assigned first-party no-fault benefits for medical supplies it had provided to its assignor, defendant appeals from a judgment of the Civil Court which, after a nonjury trial, awarded plaintiff the principal sum of $740.25.For the reasons stated in Staten Is. Advanced Surgical Supply, as Assignee of Gu Zhang v. GEICO Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-1734 Q C], decided herewith), the judgment is reversed and the matter is remitted to the Civil Court for a new trial. PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant.Law Offices of Emilia I. Rutigliano, P.C. (Emilia I. Rutigliano, Esq.), for respondent.2015-1741 Q C. STATEN IS. ADVANCED SURGICAL SUPPLY v. GEICO INS. CO. — Appeal from a judgment of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered February 6, 2015. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,670.30.ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.In this action by a provider to recover assigned first-party no-fault benefits for medical supplies it had provided to its assignor, defendant appeals from a judgment of the Civil Court which, after a nonjury trial, awarded plaintiff the principal sum of $1,670.30.For the reasons stated in Staten Is. Advanced Surgical Supply, as Assignee of Gu Zhang v. GEICO Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-1734 Q C], decided herewith), the judgment is reversed and the matter is remitted to the Civil Court for a new trial.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant.Law Offices of Emilia I. Rutigliano, P.C. (Emilia I. Rutigliano, Esq.), for respondent.2015-1843 Q C. STATEN IS. ADVANCED SURGICAL SUPPLY v. GEICO INS. CO. — Appeal from a judgment of the Civil Court of the City of New York, Queens County (Cheree A. Buggs, J.), entered February 6, 2015. The judgment, after a nonjury trial, awarded plaintiff the principal sum of $1,277.26.ORDERED that the judgment is reversed, with $30 costs, and the matter is remitted to the Civil Court for a new trial.In this action by a provider to recover assigned first-party no-fault benefits for medical supplies it had provided to its assignor, defendant appeals from a judgment of the Civil Court which, after a nonjury trial, awarded plaintiff the principal sum of $1,277.26.For the reasons stated in Staten Is. Advanced Surgical Supply, as Assignee of Gu Zhang v. GEICO Ins. Co. (___ Misc 3d ___, 2017 NY Slip Op _____ [appeal No. 2015-1734 Q C], decided herewith), the judgment is reversed and the matter is remitted to the Civil Court for a new trial.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017The Law Office of Printz & Goldstein (Lawrence J. Chanice, Esq.), for appellant.Petre and Zabokritsky, P.C., for respondent (no brief filed).2015-1887 Q C. W.H.O. ACUPUNCTURE, P.C. v. GEICO INDEM. CO. — Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered May 8, 2015. The order, insofar as appealed from, denied the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered from June 2, 2008 to September 4, 2008.ORDERED that the order, insofar as appealed from, is reversed, with $30 costs, and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered from June 2, 2008 to September 4, 2008 is granted.In this action by a provider to recover assigned first-party no-fault benefits, defendant appeals from so much of an order of the Civil Court as denied the branch of defendant’s cross motion which had sought summary judgment dismissing so much of the complaint as sought to recover for services rendered from June 2, 2008 to September 4, 2008 on the ground that these claims lacked medical necessity.In support of the branch of its cross motion at issue, defendant established that the denial of claim forms, which had denied the claims on the ground of lack of medical necessity, had been timely mailed (see St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]). Defendant further submitted a sworn report from the acupuncturist who had performed an independent medical examination of plaintiff’s assignor before the services at issue had been rendered, which report set forth a factual basis and medical rationale for the acupuncturist’s conclusion that there was a lack of medical necessity for further treatment (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 Dept, 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 Dept, 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 Dept, 2d & 11th Jud Dists 2007]). Defendant’s prima facie showing was not rebutted by plaintiff.Accordingly, the order, insofar as appealed from, is reversed, and the branch of defendant’s cross motion seeking summary judgment dismissing so much of the complaint as sought to recover for services rendered from June 2, 2008 to September 4, 2008 is granted.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.Daniel J. Tucker, Esq. (Netanel BenChaim, Esq.), for respondent.2015-2032 K C. GREENWAY MED. SUPPLY CORP. v. AMERICAN TR. INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 6, 2015. The order granted defendant’s motion for summary judgment dismissing the complaint and denied plaintiff’s cross motion for summary judgment.ORDERED that the order is affirmed, with $25 costs.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which granted defendant’s motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs), and denied plaintiff’s cross motion for summary judgment.Contrary to plaintiff’s arguments as to defendant’s motion, defendant’s proof sufficiently established the proper mailing of the EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff had failed to appear for the scheduled EUOs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).Accordingly, the order is affirmed.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.Sweetbaum & Sweetbaum, Esqs. (Marshall D. Sweetbaum, Esq.), for respondent.2015-2033 Q C. ACUPUNCTURE HEALTHCARE PLAZA I, P.C. v. ALLSTATE INS. CO. — Appeal from an order of the Civil Court of the City of New York, Queens County (Terrence C. O’Connor, J.), entered June 11, 2015. The order, insofar as appealed from, denied the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover the sum of $2,361.87 and granted the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint.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 the sum of $2,361.87 is denied; 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 appeals from so much of an order of the Civil Court as denied the branch of its motion seeking summary judgment on so much of the complaint as sought to recover the sum of $2,361.87 and granted the branch of defendant’s cross motion seeking summary judgment dismissing that portion of the complaint.With respect to so much of defendant’s cross motion as is at issue, plaintiff correctly argues on appeal that the affidavits submitted by defendant did not sufficiently set forth a standard office practice or procedure that would ensure that the denial of claim form had been timely mailed (see St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]). As defendant did not demonstrate that it is not precluded from asserting its proffered defense—that the amounts plaintiff sought to recover were in excess of the workers’ compensation fee schedule—defendant is not entitled to summary judgment dismissing so much of the complaint as sought to recover the sum of $2,361.87.However, contrary to plaintiff’s contention, the affidavit plaintiff submitted in support of its motion failed to establish that the claims at issue had not been timely denied (see Viviane Etienne Med. Care, P.C. v. Country-Wide Ins. Co., 25 NY3d 498 [2015]), or that defendant had issued timely denials of claim that were conclusory, vague or without merit as a matter of law (see Westchester Med. Ctr. v. Nationwide Mut. Ins. Co., 78 AD3d 1168 [2010]; Ave T MPC Corp. v. Auto One Ins. Co., 32 Misc 3d 128[A], 2011 NY Slip Op 51292[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]). As a result, the branch of plaintiff’s motion seeking summary judgment on so much of the complaint as sought to recover the sum of $2,361.87 was properly denied.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 the sum of $2,361.87 is denied.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017The Rybak Firm, PLLC (Damin J. Toell, Esq.), for appellant.Daniel J. Tucker, Esq. (Netanel BenChaim, Esq.), for respondent.2015-2055 K C. ACTIVE CARE MED. SUPPLY CORP. v. AMERICAN TR. INS. CO. — Appeal from an order of the Civil Court of the City of New York, Kings County (Devin P. Cohen, J.), entered July 9, 2015. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.ORDERED that the order is affirmed, with $25 costs.In this action by a provider to recover assigned first-party no-fault benefits, plaintiff appeals from an order of the Civil Court which denied plaintiff’s motion for summary judgment, and granted defendant’s cross motion for summary judgment dismissing the complaint on the ground that plaintiff had failed to appear for duly scheduled examinations under oath (EUOs).Contrary to plaintiff’s sole arguments on appeal, defendant’s proof sufficiently established proper mailing of the EUO scheduling letters (see St. Vincent’s Hosp. of Richmond v. Government Empls. Ins. Co., 50 AD3d 1123 [2008]) and that plaintiff had failed to appear for the scheduled EUOs (see Stephen Fogel Psychological, P.C. v. Progressive Cas. Ins. Co., 35 AD3d 720 [2006]).Accordingly, the order is affirmed.PESCE, P.J., ALIOTTA and SOLOMON, JJ., concur.December 22, 2017By: Solomon, J.P., Pesce, Elliot, JJ.Bonfiglio & Asterita, LLC (Steven D. Schwartzman, Esq.), for appellant.Law Office of Nicholas M. Moccia (Nicholas M. Moccia, Esq.), for respondent.2016-877 RI C. HUSS v. RUCCI OIL CO., INC. — Appeal from an order of the Civil Court of the City of New York, Richmond County (Lizette Colon, J.), entered February 26, 2016. The order denied defendant’s motion to dismiss the complaint as time-barred, pursuant to CPLR 3211 (a) (5), or based on documentary evidence, pursuant to CPLR 3211 (a) (1), or for failure to state a cause of action, pursuant to CPLR 3211 (a) (7).ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint is granted.On June 11, 2015, plaintiff Richard Huss, as Trustee of Huguenot Lodge #381 F. & A.M., commenced this action, alleging breach of contract and negligence based on defendant’s failure to obtain the necessary permits in its installation of a fuel storage tank at plaintiff’s premises. Defendant moved, pursuant to CPLR 3211 (a) (5), to dismiss the complaint as time-barred pursuant to CPLR 213 (2) for the breach of contract cause of action, and pursuant to CPLR 214 (4) for the negligence cause of action, both of which causes of action had allegedly accrued on December 19, 2008. In the alternative, defendant sought dismissal of the complaint based on documentary evidence, pursuant to CPLR 3211 (a) (1), or for failure to state a cause of action, pursuant to CPLR 3211 (a) (7). By order entered February 26, 2016, the Civil Court denied defendant’s motion, finding, among other things, that plaintiff had raised the issue of whether the doctrine of equitable estoppel was applicable, which would constitute a toll of the limitations period for each cause of action, and “[a]lso [that] the actual accrual of the action has not been established” by defendant, which is required to warrant a dismissal of the complaint as time-barred.A defendant moving for dismissal on statute of limitations grounds bears the initial burden of establishing that the time in which to commence the action has expired (see Williams-Guillaume v. Bank of Am., N.A., 130 AD3d 1016, 1016-1017 [2015]; Baptiste v. Harding-Marin, 88 AD3d 752, 753 [2011]). The burden then shifts to the plaintiff to raise a question of fact as to whether the statute of limitations is tolled or is otherwise inapplicable (see Williams-Guillaume v. Bank of Am., N.A., 130 AD3d at 1016-1017; Baptiste v. Harding-Marin, 88 AD3d at 753). A cause of action alleging breach of contract must be commenced within six years of the breach of the agreement (see CPLR 213 [2]; Barnard Coll. v. Tishman Constr. Corp. of N.Y., 261 AD2d 193 [1999]; Benson v. Boston Old Colony Ins. Co., 134 AD2d 214, 215 [1987]; Varga v. Credit-Suisse, 5 AD2d 289, 292 [1958], affd 5 NY2d 865 [1958]). A cause of action alleging negligence must be commenced within three years from the time the wrong or injury has arisen even though the injured party may be ignorant of the existence of the injury (see CPLR 214 [4]; Varga v. Credit-Suisse, 5 AD2d at 292-293, affd 5 NY2d 865). Here, both causes of action accrued, if at all, on December 19, 2008, the date on which defendant installed the fuel tank. Both causes of action allegedly arose as a result of defendant’s failure, pursuant to the agreement, to obtain the necessary permits for the installation of the fuel tank. Consequently, defendant satisfied its initial burden of establishing that the action had been commenced beyond six years after the accrual of the causes of action and, thus, is subject to dismissal as time-barred.The doctrine of equitable estoppel will generally preclude a defendant from asserting the statute of limitations as a defense where it is a defendant’s wrongdoing which produced the delay between the accrual of the cause of action and the commencement of the action (see Zumpano v. Quinn, 6 NY3d 666, 673 [2006]; North Coast Outfitters, Ltd. v. Darling, 134 AD3d 998, 999 [2015]). A plaintiff seeking to invoke the doctrine of equitable estoppel must establish that a subsequent specific action by the defendant induced the plaintiff to delay timely bringing suit due to the plaintiff’s reasonable reliance on the defendant’s misrepresentation (see Zumpano v. Quinn, 6 NY3d at 674; North Coast Outfitters, Ltd. v. Darling, 134 AD3d at 999).In October 2009, Huguenot Lodge was issued the first of three violations for its failure to obtain the necessary permits for the installation of the fuel storage tank in December 2008. It is undisputed that plaintiff was then made aware of defendant’s failure to obtain the proper permits, which permits were allegedly required by the contract between plaintiff and defendant, and it is also undisputed that soon thereafter defendant’s service manager informed plaintiff that defendant would take care of that violation. By alleging defendant’s service manager’s assurance, it can be inferred that plaintiff was invoking the doctrine of equitable estoppel as a basis for precluding defendant from asserting the statute of limitations as a defense (see North Coast Outfitters, Ltd. v. Darling, 134 AD3d at 999). Indeed, plaintiff further alleged that he was unaware that defendant had not cured the violation until a subsequent violation had been issued in July 2013 and therefore delayed commencing the instant action.However, equitable estoppel will not toll a limitations statute where a plaintiff possesses timely knowledge sufficient to place a plaintiff under a duty to make inquiry and ascertain all the relevant facts prior to the expiration of the applicable statute of limitations (see Gleason v. Spota, 194 AD2d 764, 765 [1993]; McIvor v. Di Benedetto, 121 AD2d 519, 520 [1986]; Augstein v. Levey, 3 AD2d 595, 598 [1957]). Due diligence on the part of a plaintiff in commencing an action is an essential element when the plaintiff seeks the shelter of the doctrine of equitable estoppel (see Simcuski v. Saeli, 44 NY2d 442, 450 [1978]; Ross v. Louise Wise Servs., Inc., 28 AD3d 272 [2006]). Where the doctrine of equitable estoppel applies, the burden is on the plaintiff to establish that due diligence was exercised in commencing an action within a reasonable time after the facts giving rise to the estoppel ceased to be operational (see Simcuski v. Saeli, 44 NY2d at 450; Marshall v. Duryea, 172 AD2d 726 [1991]; Curcio v. Ippolito, 97 AD2d 497, 497-498 [1983]). “Generally, [a] plaintiff will not be deemed to have exercised due diligence if such an action is deferred beyond the length of the statutory period” (Curcio v. Ippolito, 97 AD2d at 498; see Simcuski v. Saeli, 44 NY2d at 450-451). Here, we need not determine whether the assurance by defendant’s service manager that defendant would “take care” of the violation was sufficient to give rise to an equitable estoppel since, in any event, plaintiff did not demonstrate the necessary due diligence. Plaintiff could have easily commenced an action within the more than three-and-one-half years remaining on the six-year statute of limitations on the breach of contract cause of action, and the four months remaining on the three-year statute of limitations on the negligence cause of action, since the issuance of a second violation in mid-August 2011, for failure to obtain the necessary permits, provided plaintiff with timely knowledge of defendant’s failure to cure the violation prior to the expiration of either of the applicable statutes of limitations. Consequently, defendant’s motion to dismiss the complaint as time-barred should have been granted.In any event, the negligence cause of action must be dismissed pursuant to CPLR 3211 (a) (7) because assertions of negligence arising from a breach of contract claim, as here, cannot be maintained where the allegations are incidental to the plaintiff’s complaint for breach of contract (see Cabrini Med. Ctr. v. Desina, 64 NY2d 1059, 1061-1062 [1985]; Middle Country Cent. School Dist. v. O’Healy Constr. Corp., 230 AD2d 777, 778 [1996]).In light of the foregoing, we need not reach defendant’s remaining contentions.Accordingly, the order is reversed and defendant’s motion to dismiss the complaint is granted.SOLOMON, J.P., PESCE and ELLIOT, JJ., concur.December 22, 2017