No. 2012–731 K C.
Appeal from an order of the Civil Court of the City of New York, Kings County (Katherine A. Levine, J.), entered February 28, 2012. The order, insofar as appealed from and as limited by the brief, denied defendant's cross motion for summary judgment dismissing the complaint.
Present: PESCE, P.J., ALIOTTA and SOLOMON, JJ.
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, defendant appeals, as limited by the brief, from so much of an order of the Civil Court as denied defendant's cross motion for summary judgment dismissing the complaint. The court stated that the only issue for trial was the mailing of the denial ( see CPLR 3212[g] ).
A review of the record reveals that there is a question of fact as to whether defendant timely denied plaintiff's claims after plaintiff's assignor had failed to appear for duly scheduled independent medical examinations. Contrary to defendant's contention, such a defense is subject to preclusion if defendant's denial of claim forms were untimely ( see Westchester Med. Ctr. v. Lincoln Gen. Ins. Co., 60 A.D.3d 1045, 877 N.Y.S.2d 340 [2d Dept 2009], lv denied 13 N.Y.3d 714 ; see also Eastern Star Acupuncture, P.C. v. American Tr. Ins. Co., 33 Misc.3d 141[A], 2011 N.Y. Slip Op 52205[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; but see Unitrin Advantage Ins. Co. v. Bayshore Physical Therapy, PLLC, 82 A.D.3d 559, 918 N.Y.S.2d 473 [1st Dept 2011], lv denied 17 N.Y.3d 705  ).
Accordingly, the order, insofar as appealed from, is affirmed.