[*1] (July 6, 2016)

The Law Office of Jason Tenenbaum, P.C., Garden City, NY, for appellant.

Don L. Hochler, P.C., Woodbury, NY, for respondent.

In an action pursuant to Insurance Law § 5106 (c) for a de novo determination of a claim for no-fault insurance benefits, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Marber, J.), entered October 20, 2014, which, upon an order of the same court entered October 1, 2014, denying that branch of its motion which was pursuant to CPLR 3211 (b) to dismiss the third affirmative defense, granting the defendant’s cross motion to confirm the award of a master arbitrator dated January 24, 2014, and, in effect, denying, as academic, those branches of the plaintiff’s motion which were for summary judgment on the complaint and pursuant to CPLR 3211 (b) to dismiss the first, second, fourth, fifth, seventh, and eleventh affirmative defenses, and pursuant to CPLR 3211 (a) (7) to dismiss the second counterclaim and stated portions of the first counterclaim, is in favor of the defendant and against the plaintiff in the principal sum of $6,406.82.

Ordered that the judgment is reversed, on the law, with costs, those branches of the plaintiff’s motion which were pursuant to CPLR 3211 (b) to dismiss the first, second, third, and fourth affirmative defenses are granted, the defendant’s cross motion to confirm the award of the master arbitrator is denied as academic, the order entered October 1, 2014, is modified accordingly, and the matter is remitted to the Supreme Court, Nassau County, for a determination on the merits of those branches of the plaintiff’s motion which were (a) for summary judgment on the complaint, (b) pursuant to CPLR 3211 (b) to dismiss the fifth, seventh, and eleventh affirmative defenses, and (c) pursuant to CPLR 3211 (a) (7) to dismiss the second counterclaim and stated portions of the first counterclaim.

The plaintiff, AutoOne Insurance Company, a no-fault insurance carrier, was entitled to commence this action to compel the de novo adjudication of the insurance dispute at issue since a master arbitrator’s award in favor of the defendant, Eastern Island Medical Care, P.C., as assignee of Jaime Benitez, exceeded the statutory threshold sum of $5,000 (see Insurance Law § 5106 [c]; Allstate Ins. Co. v Nalbandian, 89 AD3d 648, 649 [2011]; Matter of Capuano v Allstate Ins. Co., 122 AD2d 138, 139 [1986]).

The Supreme Court erred in denying that branch of the plaintiff’s motion which was for summary judgment on the complaint on the ground that the demand for a trial de novo was untimely filed (see Insurance Law § 5106 [c]; CPLR 7511; 11 NYCRR 65-4.10 [h] [2]; see also [*2]Matter of Slater v Eagle Ins. Co., 294 AD2d 368, 369 [2002]). As this arbitration dispute was originally submitted to the American Arbitration Association (hereinafter AAA) and was not court-ordered, the 35-day timetable applied by the court pursuant to 28 NYCRR 28.12 was not applicable (see 22 NYCRR 28.2). Instead, the plaintiff had 90 days from the date the master arbitrator’s award was mailed to it to commence this action (see Insurance Law § 5106 [c]; CPLR 7511; 11 NYCRR 65-4.10 [h] [2]; see also Matter of Slater v Eagle Ins. Co., 294 AD2d at 369), and the plaintiff did so. Thus, the court erred in granting the defendant’s cross motion to confirm the award of the master arbitrator on the ground that this action was not timely commenced and in denying that branch of the plaintiff’s motion which was pursuant to CPLR 3211 (b) to dismiss the third affirmative defense, which alleged that the action was not timely commenced. As the plaintiff timely invoked its right to a de novo review by the Supreme Court, the defendant’s cross motion to confirm the award of the master arbitrator was rendered academic (see Allstate Ins. Co. v Nalbandian, 89 AD3d at 649) and the defense of untimeliness was without merit (see Matter of Slater v Eagle Ins. Co., 294 AD2d at 369; Matter of Abadinsky v Aetna Cas. & Sur. Co., 250 AD2d 673, 673-674 [1998]; Matter of Capuano v Allstate Ins. Co., 122 AD2d at 138).

The defendant’s contention that the plaintiff failed to exhaust its administrative remedies or satisfy a condition precedent because the plaintiff defaulted before the master arbitrator is without merit. There is no dispute that the plaintiff timely demanded review by a master arbitrator within 21 calendar days of the mailing of the award by the AAA no-fault arbitrator (see 11 NYCRR 65-4.10 [d] [2]). Further, the insurance regulations specifically provide that a master arbitration will proceed even if a party fails to appear or submit materials and that the master arbitrator must make a determination on the merits, not in favor of an appearing party solely on the default of the other party (see 11 NYCRR 65-4.10 [d] [8]). Thus, the plaintiff’s failure to file a brief with the master arbitrator was not determinative of whether it satisfied a condition precedent or exhausted its administrative remedies (cf. Allstate Ins. Co. v Nalbandian, 89 AD3d at 649). The plaintiff exhausted its administrative remedies when it filed its demand for review by a master arbitrator, and the master arbitrator issued an award which was final and binding except, as is relevant here, when a party commences a court action to adjudicate the dispute de novo when the award is $5,000 or more (see 11 NYCRR 65-4.10 [h] [1]).

Thus, the Supreme Court also should have granted those branches of the plaintiff’s motion which were pursuant to CPLR 3211 (b) to dismiss the first (failure to exhaust administrative remedies), second (default in master arbitration proceeding), and fourth (failure to satisfy condition precedent) affirmative defenses, as those defenses were without merit as a matter of law (see Mazzei v Kyriacou, 98 AD3d 1088, 1089 [2012]; Greco v Christoffersen, 70 AD3d 769, 771 [2010]).

Since the Supreme Court did not consider the merits of those branches of the plaintiff’s motion which were pursuant to CPLR 3211 (b) to dismiss the remaining affirmative defenses, pursuant to CPLR 3211 (a) (7) to dismiss the second counterclaim and stated portions of the first counterclaim, and for summary judgment on the complaint, the matter must be remitted to the Supreme Court, Nassau County, for a determination of those branches of the motion on the merits (see Allstate Ins. Co. v Nalbandian, 89 AD3d at 649; Hunter Sports Shooting Grounds, Inc. v Foley, 73 AD3d 702, 705 [2010]). Austin, J.P., Cohen, Miller and Duffy, JJ., concur.

[*1]

Jeffrey I. Baum & Associates, P.C., Garden City, NY (Maksim Leyvi of counsel), for appellants.

McDonnell & Adels, PLLC, Garden City, NY (Stuart M. Flamen and Stephanie A. Tebbett of counsel), for respondents.

In an action for declaratory relief and to recover damages for fraud and unjust enrichment, the defendants Raia Medical Health, P.C., and Joseph A. Raia appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (McCormack, J.), entered July 3, 2014, as granted the plaintiffs’ motion to preliminarily enjoin the defendants Raia Medical Health, P.C., and New Imaging & Diagnostic Services, P.C., inter alia, during the pendency of this action, from, among other things, commencing against the plaintiffs any new actions, arbitrations, or proceedings seeking reimbursement for no-fault benefits, and staying all such currently pending actions, arbitrations, or proceedings, and denied their cross motion pursuant to CPLR 7503 (a) to compel arbitration and stay all further proceedings in the action.

Ordered that the appeal from so much of the order as granted that branch of the plaintiffs’ motion which was for a preliminary injunction against the defendant New Imaging & Diagnostic Services, P.C., is dismissed, as the appellants are not aggrieved by that portion of the order (see CPLR 5511); and it is further,

Ordered that the order is affirmed insofar as reviewed; and it is further,

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

The defendant Raia Medical Health, P.C. (hereinafter RMH), which was owned by the defendant Joseph A. Raia (hereinafter together the appellants), allegedly billed the plaintiffs for medical services rendered to injured parties who had assigned their no-fault insurance benefits to RMH. In November 2013, the plaintiffs commenced this action for declaratory relief and to recover damages for fraud and unjust enrichment, alleging, inter alia, that RMH was ineligible to recover no-fault benefits, since it was not wholly owned and controlled by licensed physicians and was engaged in fee splitting with unlicensed individuals. The plaintiffs moved to preliminarily enjoin, among others, RMH, its agents, servants, employees, and all persons acting on its behalf, during the [*2]pendency of this action, from, among other things, “filing, commencing and/or instituting against plaintiffs any new actions, arbitrations or other proceedings seeking reimbursement for no-fault benefits,” and “staying all currently pending actions, arbitrations or other proceedings instituted by and/or on behalf of [RMH] against plaintiffs involving reimbursement for no-fault benefits.” The appellants cross-moved pursuant to CPLR 7503 (a) to compel arbitration and to stay all further proceedings in the action. The Supreme Court granted the preliminary injunction sought by the plaintiffs and denied the appellants’ cross motion.

“To obtain a preliminary injunction, a movant must demonstrate, by clear and convincing evidence, (1) a likelihood of success on the merits, (2) irreparable injury if a preliminary injunction is not granted, and (3) a balance of equities in his or her favor” (M.H. Mandelbaum Orthotic & Prosthetic Servs., Inc. v Werner, 126 AD3d 859, 860 [2015]; see CPLR 6301; Doe v Axelrod, 73 NY2d 748, 750 [1988]; Arthur J. Gallagher & Co. v Marchese, 96 AD3d 791, 791-792 [2012]). “The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court” (Arthur J. Gallagher & Co. v Marchese, 96 AD3d at 792; see Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]).

Here, the plaintiffs demonstrated a likelihood of success on the merits on their declaratory judgment causes of action. “Insurance Law § 5102 et seq. requires no-fault carriers to reimburse patients (or, as in this case, their medical provider assignees) for ‘basic economic loss’ ” (State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 320 [2005]). However, “[a] provider of health care services is not eligible for reimbursement under section 5102 (a) (1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement necessary to perform such service in New York” (11 NYCRR 65-3.16 [a] [12]). “State law mandates that professional service corporations be owned and controlled only by licensed professionals” (One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738, 740 [2008]), and provides that a professional service corporation may issue shares only to individuals, inter alia, “who are or have been engaged in the practice of such profession in such corporation or a predecessor entity” (Business Corporation Law § 1507 [a]). In this case, the plaintiffs established that RMH provided only radiological services consisting of X rays, and MRI and CT scans, and produced an affidavit from Raia, in which he admitted that he had “no training or experience in the field of radiology, including the performance and/or interpretation of MRI studies and/or x-rays.” Raia also averred that he did not consider himself “competent [in] either (i) interpreting MRI studies and/or x-ray studies that are performed on patients; or (ii) supervising the interpretations of MRI studies and/or x-ray studies.” The plaintiffs also submitted an affidavit from an investigator for the plaintiff Liberty Mutual Insurance Company within its Special Investigations Unit, who concluded that RMH was merely a “reincarnation” of Socrates Medical Health, P.C. (hereinafter Socrates), a predecessor professional corporation purportedly owned by Raia which was actually controlled by a nonphysician. The investigator indicated, among other things, that Socrates’s medical director, who was also RMH’s initial medical director, had previously faced “charges by the Attorney General of New Jersey that included being employed by unlicensed MRI facilities and negligently misreading MRI studies,” and had “agreed to pay $60,000.00 and be subject to monitoring for two years.” Thus, the plaintiffs’ submissions demonstrated a likelihood of success on the merits.

Further, under the circumstances of this case, the plaintiffs demonstrated the likelihood of irreparable injury absent the granting of the preliminary injunction, based on the multiplicity of actions and arbitrations, and the risk of inconsistent results (see Ansonia Assoc. v Ansonia Residents’ Assn., 78 AD2d 211, 219 [1980]; 21st Century Advantage Ins. Co. v Cabral, 35 Misc 3d 1240[A], 2012 NY Slip Op 51086[U] [Sup Ct, Nassau County 2012]; St. Paul Travelers Ins. Co. v Nandi, 15 Misc 3d 1145[A], 2007 NY Slip Op 51154[U] [Sup Ct, Queens County 2007]; Allstate Ins. Co. v Elzanaty, 929 F Supp 2d 199, 221-222 [ED NY 2013]; cf. Matter of Countrywide Ins. Co. v DHD Med., P.C., 86 AD3d 431, 431 [2011]). The plaintiffs submitted evidence of well over 100 pending actions and open arbitrations commenced against them by RMH. Lastly, the plaintiffs established that the balance of the equities was in their favor.

The appellants’ remaining contentions are without merit.

Accordingly, the Supreme Court properly granted that branch of the plaintiffs’ motion [*3]which was for a preliminary injunction against RMH and denied the appellants’ cross motion pursuant to CPLR 7503 (a) to compel arbitration and stay all further proceedings in the action. Rivera, J.P., Roman, Maltese and Duffy, JJ., concur.

[*1]

Bruno, Gerbino & Soriano, LLP, Melville (Mitchell L. Kaufman of counsel), for appellant.

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for respondent.

Order, Supreme Court, New York County (Manuel J. Mendez, J.), entered on or about November 13, 2014, which, to the extent appealed from as limited by the briefs, granted the motion of defendant Active Care Medical Supply Corporation (Active Care) to reargue and, upon reargument, denied plaintiff’s motion for summary judgment, reversed on the law, without costs, plaintiff’s motion granted, and it is declared that plaintiff is not obligated to pay Active Care for the claim at issue.

On November 14, 2011, plaintiff’s insured, defendant Balgobin Manoo, was involved in an automobile accident. On or about January 10, 2012, he received treatment from Active Care, at which time he executed an assignment of benefits. Prior thereto, plaintiff had referred Manoo’s claim for no-fault benefits for investigation due to inconsistencies in his statements as to treatment.

The policy’s New York State Mandatory Personal Injury Protection Endorsement required, as a condition precedent, full compliance with the conditions of coverage, which included the insured’s appearance at an examination under oath (EUO), “as may reasonably be required” (see 11 NYCRR 65-1.1). By letter dated February 3, 2012, plaintiff requested an EUO to confirm the facts and circumstances of Manoo’s loss and the treatment he received. The letter, which scheduled the EUO for February 16, was received by Manoo on February 9. Meanwhile, Active Care drafted an NF-3 claim form dated February 7, 2012.

Manoo did not appear on February 16, 2012 for his EUO. By letter dated February 23, 2012, the EUO was rescheduled for March 9, 2012. When Manoo again failed to appear, by letter dated March 16, 2012, the EUO was rescheduled for a third and final date of March 30, 2012. Manoo failed to appear, and plaintiff commenced this action seeking a declaratory judgment that defendants are ineligible to receive no-fault reimbursements due to Manoo’s failure to comply with a condition precedent to coverage under his insurance policy and the no-fault regulations by failing to appear for an EUO.

Supreme Court initially granted plaintiff summary judgment declaring that it was not obligated to provide no-fault coverage to Active Care. However, upon granting reargument, the court denied summary judgment and restored the action. In so ruling, the court held that plaintiff did not establish that its initial February 3, 2012 request for an EUO was made within the time frame set forth in the no-fault implementing regulations, because it submitted no proof as to when it received Active Care’s NF-3 form (see 11 NYCRR 65-3.5 [b] [“Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the [*2]prescribed verification forms”]). We now reverse.

Plaintiff made a prima facie showing of its entitlement to summary judgment dismissing Active Care’s claim for first-party no-fault benefits by establishing that it timely and properly mailed the notices for EUOs to Manoo and that Manoo failed to appear at his initial and follow-up EUOs. The record establishes that plaintiff requested Manoo’s initial EUO by letter dated February 3, 2012. Although Active Care’s NF-3 form is dated February 7, 2012, plaintiff was entitled to request the EUO prior to its receipt thereof (see 11 NYCRR 65-1.1; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18, 20-21 [App Term, 2d Dept, 2d & 11th Jud Dists 2004], affd 35 AD3d 720 [2d Dept 2006]; Life Tree Acupuncture P.C. v Republic W. Ins. Co., 50 Misc 3d 132[A], 2016 NY Slip Op 50023[U] [App Term, 1st Dept 2016]; Alfa Med. Supplies, Inc. v Praetorian Ins. Co., 50 Misc 3d 126[A], 2015 NY Slip Op 51847[U] [App Term, 1st Dept 2015]). The notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 do not apply to EUOs that are scheduled prior to the insurance company’s receipt of a claim form (see Fogel, 7 Misc 3d at 21; New York Cent. Mut. Fire Ins. Co. v Bronx Chiropractic Servs, P.C., 2014 NY Slip Op 33210[U] [Sup Ct, NY County 2014]).

Once Active Care presented its claim dated February 7, 2012, plaintiff was required to comply with the follow-up provisions of 11 NYCRR 65-3.6 (b) (see Inwood Hill Med., P.C. v General Assur. Co., 10 Misc 3d 18, 19-20 [App Term, 1st Dept 2005]). Plaintiff established that it fulfilled its obligation under section 65-3.6 (b) by rescheduling Manoo’s EUOs within 10 days of his failure to appear at each scheduled exam (see Arco Med. NY, P.C. v Lancer Ins. Co., 37 Misc 3d 136[A], 2012 NY Slip Op 52178[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2012]). The second EUO scheduling letter was sent on February 23, 2012, which was just seven days after the February 16, 2012 nonappearance. The third EUO scheduling letter was sent on March 16, 2012, which was just seven days after the March 9, 2012 nonappearance.

In opposition, Active Care did not raise a triable issue with respect to Manoo’s nonappearance or the mailing or reasonableness of the underlying notices (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]; Easy Care Acupuncture P.C. v Praetorian Ins. Co., 49 Misc 3d 137[A], 2015 NY Slip Op 51524[U] [App Term, 1st Dept 2015]).

The failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent vitiating coverage (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]; Allstate Ins. Co. v Pierre, 123 AD3d 618 [1st Dept 2014]). “There is no requirement to demonstrate that the claims were timely disclaimed since the failure to attend medical exams was an absolute coverage defense” (American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424-425 [1st Dept 2013], citing New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 593 [2011]).

The dissent believes that Fogel should not be followed because it is inconsistent with settled principles in this Department. Yet the dissent cites no precedent holding that an insurer cannot request an EUO prior to its receipt of a claim form pursuant to 11 NYCRR 65-1.1 and the terms of the policy’s Mandatory Personal Injury Protection Endorsement. As the Second Department explained in Fogel (35 AD3d 720), “The appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy (see 11 NYCRR 65-1.1). This conclusion accords with the language of the mandatory endorsement and the interpretation given it by the State Insurance Department, which promulgated the regulations (see 2005 Ops Ins Dept No. 05-02-21 [www.ins.state.ny.us/ogco2005/rg050221.htm; http://www.courts.state.ny.us/reporter/webdocs/no-fault_benefits_cutoff_ date.htm]; 2003 Ops Ins Dept No. 03-02-12 [www.ins.state.ny.us/ogco2003/rg030212.htm; http://www.courts.state.ny.us/reporter/webdocs/failure_to_attend_no_fault_ ime.htm]; 2002 Ops Ins Dept No. 02-04-19 [www.ins.state.ny.us/ogco2002/rg 204121.htm; http://www.courts.state.ny.us/reporter/webdocs/no_faultinsurer_ medicalexaminations.htm])” (id. at 722).

In sum, plaintiff established its prima facie entitlement to summary judgment through evidence that (i) it mailed Manoo the original EUO request in accordance with the policy’s New [*3]York State Mandatory Personal Injury Protection Endorsement, before Active Care prepared its verification; (ii) after Manoo failed to appear at that EUO, and Active Care submitted its verification, plaintiff twice rescheduled the EUO in conformity with the requirements of 11 NYCRR 65-3.6 (b); and (iii) Manoo never appeared for an EUO, a condition precedent to coverage. In opposition, Active Care did not disprove any of these facts. On this record, plaintiff’s failure to tender proof as to the exact date it received Active Care’s verification is immaterial, and the dissent’s position would unduly reward an insured who repeatedly failed to honor his obligation to appear for an EUO under the policy and the Insurance Department regulations. Concur—Tom, J.P., Friedman, Sweeny and Andrias, JJ.

Acosta, J., dissents in a memorandum as follows: I dissent because I believe that plaintiff failed to establish prima facie that it was entitled to a judgment declaring that it had no duty to cover defendant Active Care Medical Supply Corporation’s bills for no-fault medical services rendered to Active Care’s assignor, defendant Manoo, due to Manoo’s failure to appear at examinations under oath (EUOs) (see National Liab. & Fire Ins. Co. v Tam Med. Supply Corp., 131 AD3d 851 [1st Dept 2015]; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]).

Although Manoo’s failure to appear for a properly noticed EUO constitutes a breach of a condition precedent vitiating coverage (see Hertz Corp. v Active Care Med. Supply Corp., 124 AD3d 411 [1st Dept 2015]; Allstate Ins. Co. v Pierre, 123 AD3d 618 [1st Dept 2014]), plaintiff failed to tender proof that it received Active Care’s verification. Thus, plaintiff did not demonstrate that it requested Manoo’s EUO subsequent to such receipt within the time prescribed in the Insurance Department Regulations (11 NYCRR 65-3.5 [b] [“(s)ubsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms” (emphasis added)]). Plaintiff’s argument that it submitted evidence showing that its request for Manoo’s EUO was made prior to the date of Active Care’s claim is unavailing in the absence of proof of when the claim was received (see id.). Indeed, plaintiff’s motion never disclosed when it received any claim forms whatsoever from either Manoo (Form NF-2) or any medical provider who rendered services to him (Form NF-3). Plaintiff would have this Court ignore 11 NYCRR 65-3.5 (b), notwithstanding the long-established rule that “[t]he No-Fault Law is in derogation of the common law and so must be strictly construed” (Presbyterian Hosp. in City of N.Y. v Atlanta Cas. Co., 210 AD2d 210, 211 [2d Dept 1994]; see also Matter of Bayswater Health Related Facility v Karagheuzoff, 37 NY2d 408, 414 [1975]; Pekelnaya v Allyn, 25 AD3d 111, 118 [1st Dept 2005]). To the extent Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co. (7 Misc 3d 18, 21 [App Term, 2d Dept, 2d & 11th Jud Dists 2004], affd 35 AD3d 720 [2d Dept 2006]) holds otherwise, I would not follow it, because it is inconsistent with settled principles in this Department. Plaintiff having failed to establish its prima facie entitlement to summary judgment, it is irrelevant that, as the majority notes, plaintiff rescheduled Manoo’s EUO within 10 days of Manoo’s failing to appear.

[*1]

Cannon & Acosta, LLP, Huntington Station, NY (June Redecker of counsel), for appellants.

Adams, Hanson, Rego & Kaplan, Yonkers, NY (Michael A. Zarkower of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of an uninsured motorist claim, Francisco Garcia and Jaime Torres appeal from an order of the Supreme Court, Suffolk County (Santorelli, J.), dated May 28, 2015, which, upon finding that the proceeding had been timely commenced, granted the petition to permanently stay arbitration.

Ordered that the order is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed as time-barred.

“ ’CPLR 7503 (c) requires that an application to stay arbitration be made within 20 days after service of a notice of intention to arbitrate’ ” (Matter of State Farm Mut. Auto. Ins. Co. v Urban, 78 AD3d 1064, 1065 [2010], quoting Matter of Liberty Mut. Ins. Co. v Zacharoudis, 65 AD3d 1353, 1353-1354 [2009]; see Matter of Nationwide Ins. Co. v Singh, 6 AD3d 441, 443 [2004]). Unless a party makes an application for a stay of arbitration within the 20-day period, CPLR 7503 (c) precludes it from seeking a judicial determination on its objections to arbitration (see Matter of State Farm Ins. Co. v Williams, 50 AD3d 807, 808 [2008]; Matter of Standard Fire Ins. Co. v Mouchette, 47 AD3d 636 [2008]). “As an exception to this rule, however, a motion to stay arbitration may be entertained when its basis is that the parties never agreed to arbitrate” (Matter of CNA Ins. Co. v Carsley, 243 AD2d 474, 475 [1997] [internal quotation marks, brackets, ellipsis and citations omitted]; see Matter of Matarasso [Continental Cas. Co.], 56 NY2d 264, 266 [1982]; Matter of Progressive Specialty Ins. Co. v Louis, 122 AD3d 637, 638 [2014]; Matter of AIU Ins. Co. v Orellana, 18 AD3d 652 [2005]). Here, Progressive Casualty Insurance Company (hereinafter Progressive) commenced this proceeding to permanently stay arbitration more than 20 days after service upon it by the appellants, Francisco Garcia and Jaime Torres, of their notices of intention to arbitrate.

Contrary to the determination of the Supreme Court, Progressive’s contention that arbitration should be stayed on the ground that the appellants’ accident did not involve an adverse “motor vehicle,” but rather an all-terrain vehicle (see Matter of Progressive Northeastern Ins. Co. v Scalamandre, 51 AD3d 932, 933 [2008]), does not relate to whether the parties had an agreement to arbitrate. Rather, that issue relates to whether certain conditions of the insurance contract were [*2]complied with so as to entitle the appellants to uninsured motorist benefits, and therefore, had to be asserted within the 20-day time limit set forth in CPLR 7503 (c) (see Matter of State Farm Mut. Auto. Ins. Co. v Urban, 78 AD3d at 1066; Matter of AIU Ins. Co. v Orellana, 18 AD3d 652 [2005]).

Moreover, Progressive failed to establish that the appellants’ notices of intention to arbitrate were deceptive and intended to prevent it from timely commencing the proceeding (see Matter of Standard Fire Ins. Co. v Mouchette, 47 AD3d 636 [2008]; Matter of Nationwide Ins. Co. v Singh, 6 AD3d at 444). The appellants’ notices of intention to arbitrate complied with the requirements of CPLR 7503 (c), and the petitioner failed to proffer an affidavit by someone with personal knowledge to support its contention that the appellants’ service of the notices of intention to arbitrate upon a certain post office box address used by Progressive to process no-fault claims prevented it from timely contesting the issue of arbitrability (see Matter of Standard Fire Ins. Co. v Mouchette, 47 AD3d at 636; Matter of Nationwide Ins. Co. v Singh, 6 AD3d at 444). Indeed, Progressive submitted a copy of a letter from its own claims representative to the appellants’ counsel acknowledging receipt of the appellants’ notices well within the 20-day period.

Accordingly, the Supreme Court should have denied the petition and dismissed the proceeding as time-barred.

In light of our determination, we need not reach the parties’ remaining contentions. Rivera, J.P., Dickerson, Maltese and Barros, JJ., concur.

[*1]

The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

The Law Office of Sukhibir Singh, Richmond Hill (Ralph C. Caio of counsel), for respondent.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered July 10, 2015, which denied the petition to vacate a master arbitrator’s award, unanimously reversed, on the law, without costs, the petition granted, and the award vacated. The Clerk is directed to enter judgment accordingly.

The master arbitrator’s award was arbitrary because it irrationally ignored the law, which petitioner insurer had presented to the master arbitrator, that the no-fault policy issued by petitioner was void ab initio due to respondent’s assignor’s failure to attend duly scheduled independent medical exams (see American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424 [1st Dept 2013]). The alleged error in petitioner’s denial of claim form is of “no moment” (Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]), and was not a sufficient or rational basis for the award (see Auto One Ins. Co. v Hillside Chiropractic, P.C., 126 AD3d 423, 424 [1st Dept 2015], citing Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 211 [1981]).

Respondent waived its objections regarding improper service of the petition, since it never moved to dismiss the petition on those grounds (see CPLR 3211 [e]; B.N. Realty Assoc. v Lichtenstein, 21 AD3d 793, 796 [1st Dept 2005]; Matter of Resnick v Town of Canaan, 38 AD3d 949, 951 [3d Dept 2007]). Concur—Friedman, J.P., Renwick, Moskowitz, Richter and Kapnick, JJ. [Prior Case History: 48 Misc 3d 1202(A), 2015 NY Slip Op 50936(U).]

[*1]

[Recalled and vacated, see 148 AD3d 703.]

Israel Israel & Purdy, LLP, Great Neck, NY (Justin Skaferowsky of counsel), for appellant.

Printz & Goldstein, Woodbury, NY (Lawrence J. Chanice of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate a master arbitration award dated August 4, 2014, AAAMG Leasing Corp., as assignee of Dawn Channer, appeals from so much of an order and judgment (one paper) of the Supreme Court, Nassau County (Feinman, J.), entered March 3, 2015, as denied that branch of its cross petition which was for an award of an additional attorney’s fee pursuant to Insurance Department Regulations (11 NYCRR) § 65-4.10 (j) (4).

Ordered that the order and judgment is reversed insofar as appealed from, on the law and in the exercise of discretion, with costs, and that branch of the cross petition of AAAMG Leasing Corp., as assignee of Dawn Channer, which was for an award of an additional attorney’s fee pursuant to Insurance Department Regulations (11 NYCRR) § 65-4.10 (j) (4) is granted to the extent of awarding an additional attorney’s fee in the sum of $650, and is otherwise denied.

AAAMG Leasing Corp., as assignee of Dawn Channer (hereinafter the appellant), is a medical provider which made a claim for no-fault benefits from the petitioner insurance carrier. The petitioner denied the claim, stating that the supplies provided were not medically necessary.

The appellant sought arbitration of the claim, and in an award dated April 28, 2014, the arbitrator awarded the appellant the sum of $3,870.45, plus interest, and an attorney’s fee in the sum of $850.

The petitioner sought review of the arbitrator’s award by a master arbitrator. In a determination dated August 4, 2014, the master arbitrator affirmed the original arbitration award, and awarded an additional attorney’s fee in the sum of $650 pursuant to Insurance Department Regulations (11 NYCRR) § 65-4.10 (j) (2) (i), which the master arbitrator stated was the maximum allowable fee.

The petitioner then commenced the instant proceeding pursuant to CPLR article 75 to vacate the master arbitration award dated August 4, 2014. The appellant cross-petitioned to [*2]confirm the arbitration award, and sought an additional attorney’s fee pursuant to Insurance Department Regulations (11 NYCRR) § 65-4.10 (j) (4). The petitioner opposed that demand for relief. In the alternative, the petitioner stated that the appellant’s fee should be limited to $650.

In the order and judgment appealed from, the Supreme Court confirmed the arbitration award. That branch of the cross petition which was for an award of an additional attorney’s fee was denied without comment. The appeal is limited to so much of the order and judgment as denied that branch of the cross petition which was for an award of an additional attorney’s fee.

The general rule is that in proceedings involving arbitration, as in other litigation, an attorney’s fee is not recoverable unless provided for by agreement or statute (see Myron Assoc. v Obstfeld, 224 AD2d 504 [1996]). Pursuant to Insurance Law § 5106 (a), if a valid claim or portion of a claim for no-fault benefits is overdue, “the claimant shall also be entitled to recover his attorney’s reasonable fee, for services necessarily performed in connection with securing payment of the overdue claim, subject to [the] limitations promulgated by the superintendent in regulations.” In a proceeding for judicial review of an award by a master arbitrator, an attorney’s fee shall be fixed by the court adjudicating the matter (see Insurance Department Regulations [11 NYCRR] § 65-4.10 [j] [4]; Matter of Hempstead Gen. Hosp. v National Grange Mut. Ins. Co., 179 AD2d 645 [1992]).

The limitations of an attorney’s fee recoverable in an appeal from a master arbitration award are set forth in Insurance Department Regulations (11 NYCRR) § 65-4.10 (j). Insurance Department Regulations (11 NYCRR) § 65-4.10 (j) (5) states: “No attorney shall demand, request or receive from the insurer any payment or fee in excess of the fees permitted by this subdivision for services rendered with respect to a no-fault master arbitration dispute.”

The maximum attorney’s fee for a master arbitration dispute is $65 per hour, up to a maximum fee of $650, plus an additional fee of $80 per hour for oral argument, if oral argument is requested (see Insurance Department Regulations [11 NYCRR] § 65-4.10 [j] [2] [i], [ii]). Additional fees may be awarded “if the master arbitrator determines that the issues in dispute were of such a novel or unique nature as to require extraordinary skills or services” (Insurance Department Regulations [11 NYCRR] § 65-4.10 [j] [3]).

In this case, the appellant did not ask for an attorney’s fee for oral argument, and there was no finding that the issues involved were novel or unique. Accordingly, the appellant was entitled to an award of an additional attorney’s fee in the sum of $650. Leventhal, J.P., Hall, Hinds-Radix and LaSalle, JJ., concur.

[*1]

Law Office of Melissa Betancourt, P.C., Brooklyn, NY (Frank D’Esposito of counsel), for appellant.

McCormack & Mattei, P.C., Garden City, NY (John E. McCormack and Christina Perrone of counsel), for respondents.

In an action for a judgment declaring that the plaintiffs are not obligated to pay certain no-fault insurance claims submitted by the defendant, the defendant appeals from an order of the Supreme Court, Nassau County (Parga, J.), entered May 9, 2014, which granted the plaintiffs’ motion for summary judgment on the complaint and denied its cross motion for summary judgment dismissing the complaint.

Ordered that the order is modified, on the law, by deleting the provision thereof granting the plaintiffs’ motion for summary judgment on the complaint, and substituting therefor a provision denying that motion; as so modified, the order is affirmed, with costs to the defendant.

The plaintiffs commenced this action for a judgment declaring that they are not obligated to provide insurance coverage for any of the no-fault claims submitted to them by the defendant on the ground that the defendant failed to comply with conditions precedent to reimbursement under the no-fault laws and regulations and insurance laws of this state. After the defendant interposed its answer, the plaintiffs moved for summary judgment on the complaint. The plaintiffs argued, inter alia, that the defendant failed to comply with the provision of the insurance policy which required that the defendant submit to an examination under oath (hereinafter EUO), and therefore the plaintiffs were not obligated to provide insurance coverage for the no-fault claims submitted by the defendant. The defendant cross-moved for summary judgment dismissing the complaint, arguing, in effect, that the denial of claim letters issued by the plaintiffs were defective. The Supreme Court granted the plaintiffs’ motion and denied the defendant’s cross motion. The defendant appeals.

On appeal, the defendant contends, inter alia, that the plaintiffs’ motion for summary judgment should have been denied because the plaintiffs failed to establish, prima facie, that the letters scheduling the EUOs at issue were timely and properly mailed. Generally, “proof that an item was properly mailed gives rise to a rebuttable presumption that the item was received by the addressee” (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 46 [2013], affd 25 NY3d 498 [2015] [internal quotation marks omitted]; see Matter of Rodriguez v Wing, 251 AD2d 335 [1998]). “ ’The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed’ ” (New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2006], quoting Residential Holding Corp. v [*2]Scottsdale Ins. Co., 286 AD2d 679, 680 [2001]; see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d at 47). However, for the presumption to arise, the office practice must be geared so as to ensure the likelihood that the item is always properly addressed and mailed (see Nassau Ins. Co. v Murray, 46 NY2d 828 [1978]). “Denial of receipt by the insured[ ], standing alone, is insufficient to rebut the presumption” (id. at 829-830).

As the defendant correctly contends, the plaintiffs failed to establish, prima facie, that they timely and properly mailed the EUO letters to the defendant. The affirmation of the plaintiffs’ counsel contained conclusory allegations regarding his office practice and procedure, and failed to establish that the practice and procedure was designed to ensure that the EUO letters were addressed to the proper party and properly mailed (see Progressive Cas. Ins. Co. v Infinite Ortho Prods., Inc., 127 AD3d 1050, 1051-1052 [2015]; Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676, 676-677 [2007]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 548 [2006]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]).

Since the plaintiffs failed to establish their prima facie entitlement to judgment as a matter of law on the issue of the timely and proper mailing of the EUO letters, their motion for summary judgment on the complaint should have been denied, regardless of the sufficiency of the defendant’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]).

The defendant’s cross motion for summary judgment, however, was properly denied, as the defendant failed to establish, prima facie, that the denial of claim letters issued by the plaintiffs were conclusory, vague, or otherwise defective (see Westchester Med. Ctr. v Nationwide Mut. Ins. Co., 78 AD3d 1168, 1169 [2010]; Megacure Acupuncture, P.C. v Clarendon Natl. Ins. Co., 33 Misc 3d 141[A], 2011 NY Slip Op 52199[U] [App Term, 2d Dept, 11th & 13th Jud Dists 2011]). Rivera, J.P., Balkin, Barros and Connolly, JJ., concur.

[*1]

Law Offices of Melissa Betancourt, P.C., Brooklyn, NY (Frank D’Esposito of counsel), for appellant.

McCormack & Mattei, P.C., Garden City, NY (Rosemary E. Ross of counsel), for respondent.

In an action, inter alia, for a judgment declaring that the plaintiff is not obligated to pay certain no-fault claims submitted to it by the defendants, the defendant Sovereign Acupuncture, P.C., appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Sher, J.), entered June 4, 2014, as granted that branch of the plaintiff’s motion which was for summary judgment on the complaint insofar as asserted against it and declaring that the plaintiff has no duty to provide coverage to it pursuant to the policies issued to Gwendolyn McAdam and Arthur Fedee.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, that branch of the plaintiff’s motion which was for summary judgment on the complaint insofar as asserted against the defendant Sovereign Acupuncture, P.C., is denied, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith.

On December 13, 2011, a vehicle driven by the defendant Arthur Fedee, which was owned by the defendant Gwendolyn McAdam and contained three passengers, was involved in a collision. Fedee and two of the passengers sought medical care, and no-fault claims were submitted by their providers to the plaintiff, which insured McAdam (hereinafter collectively the claim one defendants). On December 22, 2011, a vehicle driven by the defendant Rouselie Bellefleur, which was owned by Fedee and contained two passengers, was also involved in a collision. Bellefleur and her passengers sought medical treatment and no-fault benefits, and the no-fault claims were submitted to the plaintiff, which insured Fedee (hereinafter collectively the claim two defendants).

Upon investigation, the plaintiff alleged that the accidents were intentionally staged and fraudulent. It thereafter commenced this action seeking a judgment declaring, inter alia, that it had no duty to provide coverage for the no-fault claims submitted to it by the medical providers who had provided treatment to the claim one and claim two defendants because the underlying accidents were deliberate and fraudulent. The plaintiff moved, inter alia, for summary judgment on the complaint insofar as asserted against the defendant Sovereign Acupuncture, P.C. (hereinafter Sovereign). The Supreme Court granted that branch of the motion and declared that the plaintiff had no duty to provide coverage for the claims submitted by Sovereign. Sovereign appeals. We reverse.

[*2] “ '[A]n intentional and staged collision caused in the furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance’ ” (Nationwide Gen. Ins. Co. v Bates, 130 AD3d 795, 796 [2015], quoting Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698, 699 [2006]; see Matter of Liberty Mut. Ins. Co. v Young, 124 AD3d 663, 664 [2015]).

In support of its motion, inter alia, for summary judgment on the complaint insofar as asserted against Sovereign, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law on the ground that the subject accidents were staged. The uncertified police accident reports submitted by the plaintiff were not admissible (see Nationwide Gen. Ins. Co. v Bates, 130 AD3d at 796; Sanchez v Taveraz, 129 AD3d 506, 506 [2015]; Adobea v Junel, 114 AD3d 818, 820 [2014]; Hazzard v Burrowes, 95 AD3d 829, 831 [2012]; cf. Caldara v Utica Mut. Ins. Co., 130 AD3d 665, 666 [2015]). The plaintiff submitted an affidavit of its medical representative, but that representative relied largely on inadmissible evidence, and lacked personal knowledge of the facts surrounding the two collisions. Thus, the plaintiff failed to establish, prima facie, through admissible evidence, that the subject collisions were deliberately caused to fraudulently obtain insurance benefits (see Nationwide Gen. Ins. Co. v Bates, 130 AD3d at 796; cf. State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490, 491 [2003]). Moreover, the plaintiff failed to establish, prima facie, that McAdam and Fedee were in breach of their insurance contracts with the plaintiff because several defendants failed to attend their scheduled EUOs. The plaintiff failed to submit proof of mailing or evidence from someone with personal knowledge of the mailings of the EUO requests (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547-548 [2006]).

In light of the foregoing, we need not reach Sovereign’s remaining contention. Mastro, J.P., Chambers, Roman and Maltese, JJ., concur.

[*1]

Freiberg, Peck & Kang, LLP, Armonk, NY (Yilo J. Kang of counsel), for appellant.

Amos Weinberg, Great Neck, NY, for respondents.

In a proceeding pursuant to CPLR article 75 to stay arbitration of claims for no-fault benefits, the petitioner appeals from an order of the Supreme Court, Kings County (Schmidt, J.), dated April 6, 2015, which denied the petition.

Ordered that the order is reversed, on the law, without costs or disbursements, the matter is remitted to the Supreme Court, Kings County, for a hearing on the issue of whether the petitioner controls, is controlled by, or is under common control by or with an insurer authorized to transact business in New York and, thereafter, for a new determination of the petition, and the arbitration is stayed pending a new determination of the petition.

The petitioner, American Independent Insurance Co. (hereinafter AIIC), is a Pennsylvania corporation not licensed to do business in the State of New York. In 2011, AIIC commenced a proceeding in the Supreme Court, Queens County, to permanently stay arbitration of three claims for no-fault benefits on the ground that it was not subject to personal jurisdiction in New York. The Supreme Court, Queens County, inter alia, granted the petition in that proceeding. On appeal, this Court, inter alia, modified the order and denied the petition (see American Ind. Ins. Co. v Art of Healing Medicine, P.C., 104 AD3d 761 [2013]). In July 2014, AIIC commenced this proceeding in the Supreme Court, Kings County, to permanently stay arbitration of the same claims for no-fault benefits that were the subject of the first proceeding, as well as to permanently stay arbitration of two additional claims. AIIC alleged, inter alia, that arbitration should be stayed because the subject policies did not contain an agreement to arbitrate. The Supreme Court denied the petition.

The Supreme Court determined that AIIC was estopped from raising its current arguments because it should have raised them in the first proceeding. We disagree. In the first proceeding, AIIC argued only that it was not subject to personal jurisdiction in New York. Had AIIC argued the merits, it would have indicated an intention to submit to the court’s jurisdiction (see Taveras v City of New York, 108 AD3d 614, 617 [2013]; Rubino v City of New York, 145 AD2d 285, 288 [1989]). Furthermore, this proceeding is not barred by the doctrines of res judicata and/or collateral estoppel (see Matter of AutoOne Ins. Co. v Valentine, 72 AD3d 953 [2010]).

[*2] Article 51 of the Insurance Law is known as the Comprehensive Motor Vehicle Insurance Reparations Act and is commonly referred to as the No-Fault Law (see Kingsbrook Jewish Med. Ctr. v Allstate Ins. Co., 61 AD3d 13, 17 [2009]). The purpose of this statute is to “ ’assure claimants of expeditious compensation for their injuries through prompt payment of first-party benefits without regard to fault and without expense to them’ ” (New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429, 430 [2004], quoting Dermatossian v New York City Tr. Auth., 67 NY2d 219, 225 [1986]).

Section 5107 of article 51, entitled “Coverage for non-resident motorists,” provides, in pertinent part, that “(a) Every insurer authorized to transact or transacting business in this state, or controlling or controlled by or under common control by or with such an insurer, which sells a policy providing motor vehicle liability insurance coverage or any similar coverage in any state or Canadian province, shall include in each such policy coverage to satisfy the financial security requirements of article six or eight of the vehicle and traffic law and to provide for the payment of first party benefits pursuant to subsection (a) of section five thousand one hundred three of this article when a motor vehicle covered by such policy is used or operated in this state” (emphasis added).

The enabling regulation to Insurance Law § 5107 provides, in relevant part, that “(b) The automobile liability insurance policies which are sold in any other state or Canadian province by an unauthorized insurer which is controlled by, or controlling, or under common control of, an authorized insurer shall be deemed to satisfy the financial security requirements of article 6 or 8 of the New York Vehicle and Traffic Law, and shall be deemed to provide for the payment of first-party benefits pursuant to section 5103 of the New York Insurance Law when the insured motor vehicle is used or operated in this State” (11 NYCRR 65-1.8 [b] [emphasis added]).

Section 5106 of the Insurance Law, entitled “Fair claims settlement,” provides, in pertinent part, that “(b) Every insurer shall provide a claimant with the option of submitting any dispute involving the insurer’s liability to pay first party benefits, or additional first party benefits, the amount thereof or any other matter which may arise pursuant to subsection (a) of this section to arbitration pursuant to simplified procedures to be promulgated or approved by the superintendent” (emphasis added).

Contrary to AIIC’s contention, the fact that the subject policies do not contain any agreement to arbitrate disputes involving the payment of first-party benefits does not preclude the respondents from exercising their option to arbitrate the underlying dispute in this proceeding. Although this Court has held, in the context of claims for uninsured or supplemental underinsured motorist benefits, that “ '[a] party will not be compelled to arbitrate absent evidence affirmatively establishing that the parties expressly agreed to arbitrate their disputes’ ” (Matter of Progressive Specialty Ins. Co. v Louis, 122 AD3d 637, 638 [2014], quoting Matter of State Farm Mut. Auto. Ins. Co. v Juma, 44 AD3d 963, 963 [2007]; see Matter of State Farm Mut. Auto. Ins. Co. v Torcivia, 277 AD2d 321 [2000]), those cases do not apply to claims for the payment of first-party benefits, ostensibly because Insurance Law § 5106 (b) mandates every insurer to provide a claimant with the option to arbitrate disputes concerning first-party benefits. Indeed, the obligation to arbitrate is not found in the policies but is imposed upon the policies by the No-Fault Law (see Ohio Cas. Group v Avellini, 54 AD2d 632 [1976], affd 43 NY2d 701 [1977]).

Here, it is undisputed that the respondents exercised their option to arbitrate the dispute over the payment of first-party benefits. It is further undisputed that AIIC is not licensed or authorized to transact business in this State. Nonetheless, AIIC’s policies may be deemed to satisfy New York’s financial security requirements and to provide for the payment of first-party benefits, which necessarily includes affording claimants the option to arbitrate disputes involving first-party benefits (see Insurance Law § 5106 [b]), if it is determined that AIIC controls, is controlled by or under common control by, or is with an authorized insurer (see Insurance Law § 5107 [a]). Although the respondents allege that AIIC falls within that criteria, there is insufficient evidence in the record to make such a determination. Therefore, the matter must be remitted to the Supreme Court, Kings County, for a hearing on the issue of whether AIIC controls, is controlled by, or is under common [*3]control by or with an authorized insurer and, thereafter, for a new determination of the petition. Dillon, J.P., Dickerson, Austin and Duffy, JJ., concur.

[*1]

Law Office of George T. Lewis, Jr., Syosset (George T. Lewis, Jr. Of counsel), for appellant.

Bruno, Gerbino & Soriano LLP, Melville (Mitchell L. Kaufman of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Eileen A. Rakower, J.), entered August 25, 2014, vacating the master arbitration decision of Frank G. Godson dated December 17, 2013, and reinstating the award of arbitrator Laura Yantsos dated September 25, 2013, unanimously affirmed.

It is undisputed that petitioner’s second follow-up request for an examination under oath was sent 11 days after respondent failed to appear on the date set in the first request and that the 10th day fell on a Sunday (see 11 NYCRR 65-3.6 [b]). Plaintiff was entitled to an extension of time to the next business day to send its second follow-up request (see General Construction Law § 25-a). Concur—Friedman, J.P., Andrias, Saxe and Kapnick, JJ.