Civil Court of the City of New York, Kings County

105699/04

For petitioner: Gary Tsirelman, P.C., Brooklyn, NY

For respondent: Wollerstein & Futoran, New York, NY

Arlene P. Bluth, J.

Upon the foregoing cited papers, petitioner seeks to vacate a No-Fault Master Arbitrator’s Award pursuant to CPLR § 7511, and respondent seeks to dismiss the petition. For the following reasons, the petition is dismissed.

Respondent argues that this Court lacks personal jurisdiction over it because petitioner failed to properly serve the notice of petition and petition. Petitioner maintains that it properly [*2]served respondent simply by mailing the petition, via regular mail, to Maria Weissman, P.C. It is undisputed that Ms. Weissman is neither employed by respondent nor authorized to receive service of process on its behalf. In fact, Ms. Weissman is not even the attorney who represented respondent in the arbitration. In the lower arbitrator’s award annexed to petitioner’s papers, the cover page lists not Ms. Weissman but “Noreen Campbell, Esq.” as the attorney for respondent. Ms. Weissman is merely the attorney who prepared respondent’s brief before the Master Arbitrator.

Section 7502(a) of the CPLR provides: “A special proceeding shall be used to bring before a court the first application arising out of an arbitrable controversy which is not made by motion in a pending action.” The instant matter qualifies as such a “first application.” To commence a special proceeding, a party files a petition (CPLR § 304), notice of which must be served in the same manner as a summons (CPLR § 403(c)). The CPLR provides for various methods of service, but does not provide for service upon a party’s attorney. See CPLR § 308 et seq. Moreover, service of process by regular mail alone is never sufficient. Id.

Therefore, petitioner’s service on Ms. Weissman was insufficient to obtain jurisdiction over respondent. See Matter of Country Wide Ins. Co., 114 AD2d 754, 494 NYS2d 709 [1st Dept 1985]. The cases petitioner cites, including Knickerbocker Insurance Company v. Gilbert, are distinguishable, as they address the sufficiency of serving a notice to stay arbitration upon the very attorney representing the respondent in the pending arbitration. See Knickerbocker Ins. Co., 28 NY2d 57, 65, 320 NYS2d 12, 17 [1971] (describing a notice to stay arbitration as “invited by the notice to arbitrate.”). See also Green Bus Lines, Inc. v. Elliot, 102 Misc 2d 1029, 1032, 424 NYS2d 1019, 1021 [Sup Ct, Queens Cty 1980]. In contrast, this proceeding was brought to vacate an award in an already completed arbitration. Therefore, pursuant to CPLR § 403(c), the notice of petition had to be served in the same manner as a summons. See Star Boxing, Inc. v. DaimlerChrysler Motors Corp., NYLJ, Apr. 8, 2005, at 27, col 1, 2005 NY Slip Op 02669 [2d Dept].

Section 7503(c) of the CPLR specifically provides that service of an application to stay arbitration “may be made upon the adverse party, or upon the attorney if the attorney’s name appears on the demand for arbitration or the notice of intention to arbitrate.” CPLR § 7503(c). But the statute says nothing about serving a notice to vacate a Master Arbitrator’s Award on an attorney. Thus, even if Ms. Weissman’s name appeared on the demand for arbitration or the notice of intention to arbitrate something not alleged or demonstrated here petitioner’s service on Ms. Weissman was improper.

In its reply, petitioner asks this Court for leave to properly serve respondent, and that such service relate back to the date of the original service in order to comply with the 90-day statute of limitation. This Court has no discretion to override the statute of limitation. See Arnold v. Mayal Realty Co., 85 NE2d 616, 617, 299 NY 57, 60 [1949]. Therefore, petitioner’s request must be denied. [*3]

Accordingly, the petition is dismissed for lack of personal jurisdiction.

This is the Decision and Order of the Court.

Dated:

ARLENE P. BLUTH

Judge, Civil Court

ASN by__________ on __________

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (E. Gesmer, J.), entered April 2, 2004, as denied its motion for summary judgment.

Order, insofar as appealed from, unanimously affirmed with $10 costs.

In this action to recover first-party no-fault benefits for medical supplies furnished to its assignors, plaintiff moved for summary judgment. However, in support of its motion, plaintiff relied upon an affidavit which did not establish that the affiant had the
requisite personal knowledge. As a result, the affidavit was of no probative value (see Republic W. Ins. Co. v RCR Bldrs., 268 AD2d 574 [2000]). Consequently, the court
properly denied plaintiff’s motion for summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). [*2]
Decision Date: April 13, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs, as limited by their brief on appeal, from so much of an order of the Civil Court, Kings County (E. Prus, J.), entered on April 20, 2004, as denied their motion for summary judgment.

Order unanimously modified by granting the motion for summary judgment by plaintiff Daniel Kim’s Acupuncture P.C. in the sum of $3,475.56 and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on the remaining claims; as so modified, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment in the sum of $11,139.79. We note at the outset that in their brief on appeal, plaintiffs have effectively withdrawn the claim of plaintiff Square Synagogue Transportation Inc. in the sum of $425. Moreover, said plaintiff’s motion for summary judgment as to its claim for $100, which defendant denied receiving, was properly denied since plaintiff’s proof of mailing as to this claim indicates a post date which is prior to the date of the bill. In the absence of any explanation of the discrepancy, plaintiff’s proof is insufficient to establish prima facie entitlement to summary judgment as to this claim. [*2]

With regard to the remaining claims, plaintiffs established a prima facie entitlement to summary judgment by proof that they submitted the claims, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]).

In opposition to plaintiffs’ motion, defendant argued that the claims of A.B. Medical Services PLLC, D.A.V. Chiropractic P.C., Daniel Kim’s Acupuncture P.C. and Square Synagogue Transportation Inc., in the sum of $7,139.23, were properly denied on the ground that plaintiffs’ assignor failed to attend scheduled independent medical examinations (IMEs).

Where “an insurer timely asserts in its claim denial form an injured person’s failure to comply with a reasonable and proper pre-claim IME request, and establishes such failure in admissible form in opposition to a plaintiff’s motion for summary judgment, the presumption of medical necessity which attaches to the claim form is rebutted . . . and such proof defeats the motion” (Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., ___Misc 3d ___, 2004 NY Slip Op 24527 [App Term, 2d & 11th Jud Dists]; see also S&M Supply Inc. v Peerless Ins. Co., 6 Misc 3d 127[A], 2004 NY Slip Op 51683[U] [App Term, 2d & 11th Jud Dists]).

It is undisputed that defendant issued timely denials based on the nonattendance of plaintiffs’ assignor at pre-claim IMEs scheduled by defendant. Contrary to plaintiffs’ contention, the letter of Transcion Medical P.C., which schedules IMEs for defendant, and defendant’s denial of claim forms, which were submitted as part of plaintiffs’ moving papers, indicated that plaintiffs’ assignor did not appear for all of the scheduled IMEs listed in Transcion’s letter. Under the circumstances presented, in our opinion, such selective attendance by plaintiffs’ assignor established the assignors’ receipt of all IME requests listed in said letter. In the absence of any reasonable excuse for the nonappearance by plaintiffs’ assignor, defendant effectively rebutted the presumption of medical necessity which ordinarily attaches to the claim forms. This is so, even though it is uncontroverted that plaintiffs’ assignor attended some of the IMEs. Therefore, its defense of lack of medical necessity of the services provided to plaintiffs’ assignor was still viable and raised a triable issue with respect thereto. Accordingly, the court below properly denied said plaintiffs’ motion for summary judgment in the sum of $7,139.23 (see Stephen Fogel Psychological, P.C. v Progressive Casualty Ins. Co., Misc 3d , 2004 NY Slip Op 24527, supra).

With regard to the additional claims of Daniel Kim’s Acupuncture P.C. in the amount of $3,475.55, which were timely denied, the stated basis for denial was lack of medical necessity, rather than the failure to appear for an IME. In opposition to the motion for summary judgment, defendant was required to submit proof in admissible form to rebut plaintiff’s prima facie showing (A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86, supra). Defendant submitted an unsworn peer review report of an acupuncturist. Since said report was not in admissible form, it was insufficient to warrant denial of said plaintiff’s motion for summary judgment (see CPLR 2106; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86, supra; A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & [*3]11th Jud Dists]).

We note that to the extent that the decision of the court below rests on the lack of authentication of the assignments, it is erroneous. The lack of authentication of an assignor’s signature, in and of itself, does not constitute a defect in the absence of any statutory and regulatory requirement for the same (A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]). Even assuming arguendo that a lack of authentication constitutes a cognizable defect, defendant’s failure to seek verification of the assignments and to allege any deficiency in the assignments in its denial of claim forms constitutes a waiver of any defenses with respect thereto (see id; see also New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. in City of N. Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]; Park Health Ctr. v Eveready Ins. Co., 2001 NY Slip Op 40665[U] [App Term, 2d & 11th Jud Dists]).

Accordingly, the order of the court below is modified by granting the motion for summary judgment by plaintiff Daniel Kim’s Acupuncture P.C. in the sum of $3,475.56, and remanding the matter for the calculation of statutory interest and an assessment of attorney’s fees thereon pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder, and for all further proceedings on the remaining claims.
Decision Date: April 13, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the District Court, Nassau County (J. Asarch, J.), dated October 1, 2003, as denied its motion for summary judgment and cross appeal by defendant from so much of the same order as denied its cross motion for summary judgment.

Order unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignors, plaintiff health care provider established a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Damadian MRI in Elmhurst v Liberty Mut. Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51700[U] [App Term, 9th & 10th Jud Dists]). Inasmuch as defendant failed to pay or deny the claim within the 30-day statutory period (11 NYCRR 65.15 [g] [3]), it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant is not precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s special investigator was sufficient to demonstrate that defendant’s denial was based [*2]upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment was properly denied. The denial of defendant’s cross motion seeking summary judgment was also correct, inasmuch as the evidence which defendant [*3]
proffered was insufficient to establish, as a matter of law, that “the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199; Zuckerman v City of New York, 49 NY2d 557, supra).
Decision Date: April 13, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from an order of the Civil Court, Richmond County (P. Straniere, J.), entered March 9, 2004, which, inter alia, denied its motion to dismiss the complaint.

Order unanimously reversed without costs and defendant’s motion to dismiss the complaint granted.

In this action, plaintiff seeks to recover assigned first-party no-fault benefits for medical services rendered. The defendant interposed an answer and a demand for a bill of particulars dated September 11, 2000. Notwithstanding this demand and a subsequent letter by defendant’s attorney dated January 11, 2002, plaintiff failed to serve a bill of particulars. By order dated March 14, 2002, the court granted defendant’s unopposed motion to preclude the plaintiff “from offering the particulars at . . . trial” unless the plaintiff served a bill of particulars within 30 days of service of the order with notice of entry. Defendant made a motion returnable December 18, 2003 for an order pursuant to CPLR 3126 to dismiss the complaint for plaintiff’s failure to comply with the order dated March 14, 2002. Plaintiff served a bill of particulars on January 27, 2004. As a result of the plaintiff’s failure to serve a bill of particulars by the date set forth in the conditional order of preclusion, that order became absolute (Michaud v City of New York, 242 AD2d 369 [1997]). In order for the plaintiff to avoid the adverse impact of an order of preclusion, it was incumbent upon him to demonstrate an excusable default and a meritorious claim (Felicciardi v Town of Brookhaven, 205 AD2d 495 [1994]). Plaintiff’s [*2]attorney offered no excuse for the default. Since the plaintiff cannot prove its case without the items demanded in the bill of particulars, defendant’s motion to dismiss the complaint should have been granted.
Decision Date: April 13, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from an order of the Civil Court, Kings County (R. Garson, J.), entered on April 2, 2004, which granted plaintiff’s motion for summary judgment in the sum of $1,684.12.

Order unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Contrary to defendant’s contention, its denial of claim forms, indicating the dates on which the claims were received, adequately established that plaintiff sent, and that defendant received, these respective claims (see A.B. Med. Servs. v New York Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]). Moreover, the lack of authentication of an [*2]assignor’s signature, in and of itself, does not constitute a defect in the absence of any statutory and regulatory requirement for the same (A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]). Even assuming arguendo that a lack of authentication constitutes a cognizable defect, defendant’s failure to seek verification of the assignments and to allege any deficiency in the assignments in its denial of claim forms constitutes a waiver of any defenses with respect thereto (see id.; see also New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. in City of N. Y. v Aetna [*3]
Cas. & Sur. Co., 233 AD2d 433 [1996]; Park Health Ctr. v Eveready Ins. Co., 2001 NY Slip Op 40665[U] [App Term, 2d & 11th Jud Dists]).

In opposition to plaintiff’s contention that the defendant’s denial was untimely, the defendant argues that its 30-day period was extended by its verification requests for examinations under oath (EUOs.) The revised insurance regulations, which took effect on April 5, 2002, include EUOs in the Mandatory Personal Injury Protection Endorsement, providing that an eligible injured person submit to EUOs “as may reasonably be required” (11 NYCRR 65-1.1 [d]). With regard to claims submitted on or after April 5, 2002, an insurer’s request for EUOs as additional verification may toll the 30-day period provided that the insurer complies with the regulatory time periods and conditions set forth in the claim rules (see 11 NYCRR 65-3.5 [b], [e]; S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists]). Additionally, “[c]onsistent with the Insurance Department’s interpretation of the new regulation, which is entitled to great deference . . . the insurer must include the revised prescribed endorsement with new or renewal policies issued on or after April 5, 2002, and the claim rules are to be governed by the policy endorsement in effect” (S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d
130[A], 2004 NY Slip Op 50693[U], supra; see Star Med. Servs. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]).

It is uncontroverted that plaintiff’s claims were submitted subsequent to April 5, 2002. However, defendant’s submissions failed to establish in the first instance that the insurance policy contained an endorsement authorizing EUOs (see S&M Supply Inc. v Lancer Ins. Co., 4 Misc 3d 131[A], 2004 NY Slip Op 50695[U] [App Term, 9th & 10th Jud Dists]; S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U], supra). Accordingly, defendant’s requests for EUOs cannot operate to toll the 30-day period. Even assuming the existence of an insurance policy containing the revised endorsement, defendant has nonetheless failed to establish by competent evidence that its EUO verification requests were timely so as to toll the 30-day period (see 11 NYCRR 65-3.5 [b]). The purported EUO notices dated July 1, 2002, for which there was no admissible proof of mailing, do not, in any event, constitute proper notice of EUOs, as they merely indicate a delay in the processing of the claim (see Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]).

Accordingly, defendant failed to establish a timely denial of the claim and it is thus precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]), including its defenses of non-conformity with the Workers’ Compensation schedules (see New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 586 [2002]; Triboro Chiropractic and Acupuncture, PLLC v New York Cent. Mut. Fire Ins. Co., 6 Misc 3d 132[A], 2005 NY Slip Op 50110[U] [App Term, 2d & 11th Jud Dists]) and lack of medical necessity (see Amaze Med. Supply v Allstate Ins. Co., 2 Misc 3d 134[A], 2004 NY Slip Op 50211[U] [App Term, 2d & 11th Jud Dists]). [*4]
Decision Date: April 13, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County (E. Gesmer, J.), entered on March 26, 2004, which denied its motion for summary judgment.

Order unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignors, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted claims, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Defendant’s denial of claim forms indicate that defendant did not deny the claim within the statutorily prescribed 30-day period (see 11 NYCRR 65-3.8 [c]), and that its verification requests did not extend the 30-day period since such requests were untimely (11 NYCRR 65-3.8 [a], [b]). Inasmuch as defendant failed to pay or deny the claim within the 30-day period, it is precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

However, defendant is not precluded from asserting the defense that the alleged injuries were not causally related to the accident (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]). The “Accident Analysis” report, referred to by defendant as a “Low Impact Study,” together with the sworn certification of the Technical Consultant/Accident Reconstructionist who prepared the report, constituted admissible evidence in support of defendant’s defense of a lack of causal [*2]nexus between the accident and the injuries claimed by plaintiff’s assignors, and was sufficient to demonstrate that the defense was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199; see also Mount Sinai Hosp. v Triboro Coach, 263 AD2d at 19). Contrary to plaintiff’s contention, the Accident Analysis report was relevant to the issue of causation (Valentine v Grossman, 283 AD2d 571 [2001]).

Therefore, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment was properly denied.
Decision Date: April 13, 2005

—[*1]

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Lodato, J.H.O.), dated May 18, 2004, as denied the petition.

Ordered that the order is reversed insofar as appealed from, on the law and the facts, with costs, and the petition is granted.

The respondents allegedly were injured when the vehicle in which they were passengers collided with another vehicle, and was then struck in the rear by a third vehicle. The third vehicle fled the scene, and the identity of its owner and operator has never been ascertained. At the time of the accident, the vehicle the respondents were traveling in was insured by the petitioner, Allstate Insurance Company (hereinafter Allstate). Shortly after the accident, the respondents’ attorney notified Allstate that the respondents were making a claim for uninsured/underinsured motorist benefits under the policy it had issued to its insured. However, neither this claim letter, nor the “Notice of Intention to Make Claim” forms and applications for no-fault benefits which the respondents submitted to Allstate, indicated that an unidentified or hit-and-run vehicle was involved in the accident. The respondents subsequently demanded arbitration of their claim for uninsured motorist benefits arising from a hit-and-run accident, and Allstate commenced this proceeding to permanently stay arbitration. In its petition, Allstate alleged that the respondents failed to comply with a policy provision that required a claimant to file a statement under oath, within 90 days after the accident, that he or she has a cause of action arising out of an accident with a hit-and-run vehicle. [*2]In opposition to the petition, the respondents argued that the notice provisions of Allstate’s policy were ambiguous because another section of its uninsured motorist endorsement required a claimant to furnish sworn proof of claim “after written request’ by Allstate. The Supreme Court denied Allstate’s application for a permanent stay, and we now reverse.

The requirement that a claimant file a sworn statement that he or she has a cause of action arising out of an accident with a hit-and-run vehicle, within 90 days after the accident, is a condition precedent to coverage under an uninsured motorist endorsement (see Matter of Empire Ins. Co. v Dorsainvil, 5 AD3d 480 [2004]; Matter of Legion Ins. Co. v Estevez, 281 AD2d 420 [2001]; Matter of Aetna Life & Cas. v Ocasio, 232 AD2d 409 [1996]; Matter of State Farm Ins. Co. v Velasquez, 211 AD2d 636 [1995]). Absent a valid excuse, the failure to comply with this condition precedent vitiates coverage (see Matter of Allcity Ins. Co. [Jimenez], 78 NY2d 1054 [1991]; Matter of Empire Ins. Co. v Dorsainvil, supra; Matter of Interboro Indem. Mut. Ins. Co. v Napolitano, 232 AD2d 561 [1996]; Matter of Travelers Indem. Co. [Madera], 189 AD2d 570 [1993]). However, we have also recognized that where, as here, an uninsured motorist endorsement contains ambiguous notice of claim provisions, “a failure to file a sworn statement of the hit-and-run claim . . . does not necessarily vitiate coverage when the carrier otherwise receives adequate notice of the claim” within the requisite 90-day period (Matter of American Home Assur. Co. v Joseph, 213 AD2d 633, 634 [1995]; see also Matter of Eveready Ins. Co. v Farrell, 304 AD2d 830 [2003]; Matter of Eveready Ins. Co. v Ruiz, 208 AD2d 923 [1994]). Here, neither the respondents’ claim letter, applications for no-fault benefits, nor “Notice of Intention to Make Claim” forms provided Allstate with any notice that a hit-and-run vehicle had been involved in the accident. Under these circumstances, the respondents failed to provide Allstate with adequate notice of their claim. Thus, the petition for a permanent stay of arbitration should have been granted (see Matter of American Home Assur. Co. v Joseph, supra). Schmidt, J.P., Krausman, Rivera and Fisher, JJ., concur.

—[*1]

In an action pursuant to Insurance Law § 3420 (a) (2) to recover the amount of an unsatisfied judgment against the defendant’s insured, the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (Schneier, J.), dated April 8, 2004, which denied their motion for summary judgment and granted the defendant’s cross motion for summary judgment dismissing the complaint, and (2) so much of an order of the same court dated July 16, 2004, as, upon reargument and renewal, adhered to its original determination.

Ordered that the appeal from the order dated April 8, 2004, is dismissed, as that order was superseded by the order dated July 16, 2004, made upon reargument and renewal; and it is further,

Ordered that the order dated July 16, 2004, is reversed insofar as appealed from, on the law, and upon reargument and renewal, the order dated April 8, 2004, is vacated, the complaint is reinstated, the plaintiffs’ motion for summary judgment is granted, and the cross motion is denied; and it is further,

Ordered that one bill of costs is awarded to the plaintiffs.

The plaintiff Nathaniel Shell allegedly was injured on January 2, 2000, in a motor vehicle accident involving Raul L. Park, the driver of the alleged offending vehicle, which was owned by Claymonth Park. At the time of the accident, Claymonth Park’s vehicle was insured by the defendant. The plaintiffs commenced an action against Raul L. Park and Claymonth Park (hereinafter the Parks) to recover damages for personal injuries sustained by Nathaniel Shell.

On September 24, 2002, the Supreme Court entered judgment against the Parks. A copy of this judgment was served on the defendant on September 27, 2002. This was the first notice of the plaintiffs’ claim given to the defendant by anyone. However, the defendant received tardy notice of the accident from the plaintiffs’ insurer by way of a subrogation intercompany arbitration demand dated April 5, 2002, seeking adjustment of no-fault benefits. The defendant, by letter dated April 10, 2002, promptly disclaimed coverage for “this claim” submitted by the plaintiffs’ insurance company because the defendant’s own insured failed to give prompt notice of it. The letter dated April 10, 2002, addressed to Claymonth Park, indicated that a copy of it was sent to the plaintiff Nathaniel Shell.

Relying on its disclaimer dated April 10, 2002, the defendant did not satisfy the plaintiffs’ judgment. The plaintiffs commenced this action on July 10, 2003, and the defendant served an answer dated October 20, 2003. The plaintiffs treated the answer as a disclaimer of their claim as injured parties (see Insurance Law § 3420 [a] [3]) on the basis that the answer pleaded that the plaintiffs were subject to all defenses against the insured party and that the insured party failed to give the defendant prompt notice of the accident or loss. Since the disclaimer was made more than 12 months after the defendant was notified of the plaintiffs’ claim by way of service of a copy of the judgment, the plaintiffs moved for summary judgment based on the tardiness of the disclaimer. The defendant, in support of its cross motion for summary judgment, argued that its disclaimer letter dated April 10, 2002, covered the injured parties’ claim embodied in the judgment. The Supreme Court held that the disclaimer dated April 10, 2002, was insufficient to cover the plaintiffs’ claim because the defendant was not aware of the claim at the time it sent the letter. Instead, it held that the defendant was first apprised of the plaintiffs’ claim when it received the summons and complaint in this action, and thus, the defense of late notice asserted in its answer was timely.

The plaintiffs moved for reargument and renewal, on the ground that the Supreme Court overlooked the date of the defendant’s receipt of the plaintiffs’ judgment as its first notice of the claim. In addition, the plaintiffs referred to a letter obtained in discovery that, they argued, evidenced the defendant’s awareness of the claim of the plaintiff Nathaniel Shell as early as March 26, 2002. The Supreme Court, in its order dated July 16, 2004, upon granting reargument and renewal, adhered to its original determination. In that order, the court indicated that the letter dated March 26, 2002, did not “assert a claim by [the] plaintiffs against [the] defendants.” We reverse.

The defendant’s reliance on its disclaimer dated April 10, 2002, was misplaced. An insurer’s justification for denying coverage is strictly limited to the ground stated in the notice of disclaimer (see General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 [1979]; Pawley Interior Contr., Inc. v Harleysville Ins. Cos., 11 AD3d 595, 596 [2004]; Prus v Glencott Realty Corp., 10 AD3d 390, 391 [2004]). The letter dated April 10, 2002, disclaimed coverage on the ground that its insured failed to give “prompt notice of this claim,” a no-fault subrogation claim. This language made no reference to the plaintiffs’ claim in the underlying action against the Parks. Therefore, as the Supreme Court observed, albeit for a different reason, the letter dated April 10, 2002, could not serve as a disclaimer [*2]of the plaintiffs’ claim in the underlying action against the Parks. Moreover, the letter dated April 10, 2002, was based on the failure of Claymonth Park to give prompt notice and made no reference to the failure of the plaintiff Nathaniel Shell, the injured party, to give such notice (see Vacca v State Farm Ins. Co., 15 AD3d 473 [2005]). Therefore, the disclaimer dated April 10, 2002, was ineffective against the plaintiffs (see General Acc. Ins. Group v Cirucci, supra; Halali v Evanston Ins. Co., 8 AD3d 431, 433 [2004]; Matter of State Farm Mut. Auto. Ins. Co. v Cooper, 303 AD2d 414 [2003]).

Thus, the defendant’s answer in this action was, in effect, the only disclaimer of coverage of the plaintiffs’ claim. Since it was furnished over 12 months after the plaintiffs notified the defendant of their claim by way of service of a copy of their judgment against the Parks, the disclaimer, as a matter of law, was not made “as soon as is reasonably possible” (Insurance Law § 3420 [d]; see Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 1030 [1979]; Government Empls. Ins. Co. v Kolodny, 269 AD2d 564, 565 [2000]). The lack of timeliness of the disclaimer renders academic any consideration of the validity of the grounds asserted therein including the staleness of notice furnished by the insured or by the injured party (see Crowningshield v Nationwide Mut. Ins. Co., 255 AD2d 813, 815 [1998]; State Farm Mut. Auto. Ins. Co. v Clift, 249 AD2d 800, 801 [1998]; Matter of Nationwide Mut. Ins. Co. v Steiner, 199 AD2d 507 [1993]; Kramer v Interboro Mut. Indem. Ins. Co., 176 AD2d 308 [1991]).

Accordingly, the Supreme Court should have granted summary judgment in favor of the plaintiffs rather than the defendant.

In view of the foregoing, it is unnecessary to reach the remaining contentions of the parties. Schmidt, J.P., Goldstein, Crane and Fisher, JJ., concur.

—[*1]

In an action to recover no-fault medical payments under an insurance contract, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Cozzens, J.), dated January 6, 2004, as, upon renewal, granted the defendant’s motion for summary judgment dismissing the first cause of action and denied its cross motion for summary judgment on that cause of action.

Ordered that the appeals by the plaintiffs Hospital for Joint Diseases and Mary Immaculate Hospital are dismissed, without costs or disbursements, as those plaintiffs are not aggrieved by the portion of the order appealed from (see CPLR 5511); and it is further,

Ordered that the order is modified, on the law, by deleting the provision thereof which, upon renewal, granted the motion and substituting therefor a provision denying the motion; as so modified, the order is affirmed insofar as appealed from by the plaintiff New York and Presbyterian Hospital, without costs or disbursements.

Marco Rizzi, the assignor of the plaintiff New York and Presbyterian Hospital (hereinafter the Hospital) was insured as a covered person under a policy of insurance (hereinafter the policy) issued by the defendant Government Employees Insurance Company (hereinafter GEICO). Rizzi was treated at the Hospital for the period from February 22, 2002, through April 3, [*2]2002, for injuries related to an automobile accident covered under the policy (hereinafter the accident). According to GEICO, on April 13, 2002, it received a bill from the Hospital submitted for medical services rendered to Rizzi for injuries resulting from the accident. GEICO then sent verification requests to the Hospital on April 22, 2002, and on May 22, 2002.

According to the Hospital, it first sent the claim related to the accident to GEICO on May 9, 2002, and it was received by GEICO on May 13, 2002. Thereafter, it received GEICO’s first verification request dated May 22, 2002. The Hospital did not deny receiving the purported verification request sent by GEICO dated April 22, 2002.

It is undisputed that the Hospital finally sent the required verification documents on April 23, 2003. Upon receipt thereof, GEICO paid the Hospital $60,961.44, the amount which undisputably represented the balance of funds left on the no-fault portion of the policy at that time.

The Hospital does not dispute the total amount of the policy, nor the amount paid out on it. However, it contends that GEICO’s first purported verification request dated April 22, 2002, was a nullity since at the time it was sent, the Hospital had not yet sent the bill to GEICO for the medical services rendered to Rizzi.

Thereafter, GEICO moved for summary judgment dismissing the Hospital’s first cause of action on the ground that it had paid out all the money available under the no-fault portion of the policy, and the Hospital cross-moved for summary judgment on that cause of action for the sum of $32,961.15, the amount GEICO paid to other health care providers after May 13, 2002, the date the Hospital contends GEICO received its initial claim.

The parties do not dispute that GEICO, a no-fault insurer, may send an initial request for verification within 10 business days of receipt of a completed application for motor vehicle no-fault benefits. If any requested information was not supplied within 30 days of that request, then within 10 days after that (i.e., within 40 days after the initial request for verification was sent) GEICO must follow that up with a properly documented telephone call or by mail (see 11 NYCRR 65.15 [d] [1]; [e] [2]; New York & Presbyterian Hosp. v American Tr. Ins. Co., 287 AD2d 699, 699-700 [2001]). If that is not done then, upon receipt of the requested verifying information, the insurer is required to pay the requested amount, within the policy limits, before paying health care providers who submit later claims. Furthermore, GEICO does not dispute the Hospital’s contention that any request for verification sent before the submission of a claim by a health care provider is a nullity.

In this instance, GEICO made out a prima facie case that it had sent the initial request for verification, as well as the required follow up thereto, subsequent to its receipt of a claim by the Hospital on April 13, 2002. However, in opposition, the Hospital raised a triable issue of fact, through the affidavit of Peter Kattis, a billing agent for the Hospital, as to whether its first claim was actually mailed May 9, 2002, and not received until May 13, 2002, in which case GEICO only would have sent an initial request for verification after the Hospital’s initial submission of its claim. Accordingly, upon renewal, GEICO’s motion for summary judgment dismissing the first cause of action should have been denied (see generally Alvarez v Prospect Hosp., 68 NY2d 320, 325 [1986]; Tate v Freeport Union School Dist., 7 AD3d 695 [2004]; Corcoran v Babylon Tr., 295 AD2d 392 [2002]; Roth v Barreto, 289 AD2d 557 [2001]).

The Hospital’s remaining contentions are without merit. Florio, J.P., Cozier, Krausman and Rivera, JJ., concur.