—[*1] The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Law Offices of Melissa Betancourt, P.C., Brooklyn (Melissa Betancourt of counsel), for respondents.

Order, Supreme Court, Bronx County (Wilma Guzman, J.), entered April 12, 2013, which denied plaintiff’s motion for leave to enter a default judgment against all defendants and granted the cross motion of defendants-respondents KHL Acupuncture, P.C. and South Shore Osteopathic Medicine, P.C., to compel acceptance of their answers, unanimously affirmed, without costs.

In this action for a declaration that no-fault insurance coverage does not exist, based solely on defendant Perez’s failure to appear for an examination under oath (EUO), the motion court providently exercised its discretion in granting defendants-respondents’ cross motion to compel plaintiff to accept their belated answers (see CPLR 3012 [d]). The affirmation from respondents’ attorney sufficiently explained that the minimal delay was due to a computer inputting error in her office (Smoke v Windermere Owners, LLC, 109 AD3d 742 [1st Dept 2013]; Goldman v Cotter, 10 AD3d 289, 291 [1st Dept 2004]). We note that respondents’ counsel acted promptly upon discovering the error, there is no history of willful neglect, and plaintiff suffered no prejudice.

Contrary to plaintiff’s contention, a meritorious defense is not required to obtain relief under CPLR 3012 (d) (see Smoke, 109 AD3d at 742). In any event, respondents made such a showing by demonstrating that there is insufficient evidence that defendant Perez was properly notified of the EUOs. The affidavit of service submitted in support of plaintiff’s motion for a default judgment was insufficient to satisfy its burden of establishing that the EUO scheduling letters were mailed in accordance with the no-fault implementing regulations (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). Plaintiff also failed to provide objective proof of mailing establishing that the letters were mailed to Perez (see Matter of Szaro v New York State Div. of Hous. & Community Renewal, 13 AD3d 93, 94 [1st Dept 2004]). Accordingly, the motion court also [*2]properly denied plaintiff’s motion for a default judgment (see CPLR 3215 [f]).

We have considered plaintiff’s remaining arguments and find them unavailing. Concur—Gonzalez, P.J., Andrias, Saxe, Richter and Clark, JJ.

—[*1] The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Order, Supreme Court, New York County (Ellen M. Coin, J.), entered March 26, 2013, which denied plaintiff’s motion for summary judgment, unanimously reversed, on the law, without costs, the motion granted, and it is declared that plaintiff insurance company has no obligation to pay defendant Stand-Up MRI’s claims.

Plaintiff demonstrated its entitlement to judgment as a matter of law by submitting competent evidence that it mailed the notices scheduling the injured defendant’s independent medical examinations (IMEs) and that he failed to appear for the examinations (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [1st Dept 2013]; American Tr. Ins. Co. v Solorzano, 108 AD3d 449, 449 [1st Dept 2013]). Defendant provider’s contention that plaintiff failed to prove the mailing of IME notices to the assignor’s attorney, absent competent proof in the record establishing that the assignor was represented by counsel with regard to the subject no-fault claim, is unavailing (see Center for Orthopedic Surgery, LLP v New York Cent. Mut. Fire Ins. Co., 31 Misc 3d 128[A], 2011 NY Slip Op 50473[U] [App Term, 1st Dept 2011]).

Attendance at a medical examination is a condition of coverage. Accordingly, there is no [*2]requirement that the claim denial be timely made (see American Tr. Ins. Co. v Lucas, 111 AD3d 423 [1st Dept 2013]; Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). Concur—Mazzarelli, J.P., Sweeny, DeGrasse, Freedman and Gische, JJ.

—[*1] Peter C. Merani, New York, N.Y. (Mark J. Fenelon of counsel), for appellant.

Peter J. DiConza, Jr., Manhasset, N.Y., for respondent.

In a proceeding pursuant to CPLR article 75 to vacate the award of a master arbitrator dated June 6, 2012, which vacated an award of an arbitrator dated March 5, 2012, the petitioner appeals from an order of the Supreme Court, Nassau County (Jaeger, J.), entered October 1, 2012, which, inter alia, denied the petition and confirmed the master arbitrator’s award.

Ordered that the order is affirmed, with costs.

“A master arbitrator is empowered to apply the law to a given set of facts even if his or her conclusion differs from that of the arbitrator” (Matter of Empire Ins. Co. v Lam, 273 AD2d 469, 470 [2000]). Contrary to the petitioner’s contention, the Supreme Court properly determined that the master arbitrator did not exceed his powers. The master arbitrator properly vacated the arbitration award which, in light of the evidence, was “incorrect as a matter of law” (former 11 NYCRR 65.19 [a] [4]; see Insurance Law § 5106; Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207 [1981]; Matter of State Farm Ins. Co. v Spilotros, 257 AD2d 577 [1999]).

The petitioner’s remaining contentions are without merit. Dillon, J.P., Dickerson, Cohen and Hinds-Radix, JJ., concur.

—[*1] The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Law Offices of Melissa Betancourt, P.C., Brooklyn (Melissa Betancourt of counsel), for Empire Acupuncture, PC, respondent.

Amos Weinberg, Great Neck, for Multiple Medical Health Services P.C. and Infinite Chiropractic, PLLC, respondents.

Order, Supreme Court, Bronx County (John A. Barone, J.), entered December 24, 2012, which, insofar as appealed from as limited by the briefs, denied plaintiff’s motion for summary judgment against defendants Multiple Medical Health Services, P.C. and Infinite Chiropractic, PLLC, unanimously reversed, on the law, with costs, the motion granted, and it is declared that plaintiff owes no coverage duty to said defendants.

Plaintiff established its entitlement to summary judgment by submitting an affidavit of service demonstrating that the notices scheduling independent medical examinations (IMEs), in connection with a no-fault insurance claim filed by Maria Marte-Rosario, were properly mailed to her and her counsel, and the doctor’s affidavit establishing Marte-Rosario’s failure to appear at the scheduled IMEs (see American Tr. Ins. Co. v Solorzano, 108 AD3d 449 [1st Dept 2013]). The affidavit of service raised a presumption that a proper mailing occurred, which defendants failed to rebut by submitting a returned letter to Marte-Rosario from her counsel, with the name of her street apparently misspelled; in any event, there is no evidence rebutting the showing that the notices were served on Marte-Rosario’s counsel (see Matter of Ariel Servs., Inc. v New York City Envtl. Control Bd., 89 AD3d 415 [1st Dept 2011]). As it is undisputed that Marte-Rosario’s appearance at scheduled IMEs was a condition precedent to coverage, plaintiff was entitled to deny the claim (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). Defendant Empire Acupuncture, PC (Empire), which has not appealed from the order, requests modification of the order to deny plaintiff’s motion for summary judgment against it and grant Empire’s motion for summary judgment against plaintiff. Contrary to plaintiff’s contention, the [*2]court’s reference to a “default” by Empire does not render the portion of the order pertaining to Empire nonappealable pursuant to CPLR 5511, since Empire opposed plaintiff’s motion for summary judgment against it (see Spatz v Bajramoski, 214 AD2d 436, 436 [1st Dept 1995]). However, although we are empowered to search the record and grant the relief sought by Empire under these circumstances (see generally Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106 [1984]; Brewster v FTM Servo, Corp., 44 AD3d 351 [1st Dept 2007]), we have considered and rejected Empire’s arguments on the merits. Concur—Tom, J.P., Andrias, Friedman, Freedman and Clark, JJ.

—[*1] The Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Law Offices of Melissa Betancourt, P.C., Brooklyn (Sam Lewis of counsel), for respondent.

Orders, Supreme Court, New York County (Ellen M. Coin, J.), entered on or about February 26 and 28, 2013, which, to the extent appealed from as limited by the briefs, in the respective actions regarding the injured claimants Keyana Lucas and Tashuana Lucas, denied plaintiff’s motions for summary judgment seeking declarations of noncoverage for no-fault benefits as against defendant-respondent Sky Acupuncture, P.C., unanimously reversed, on the law, without costs, the motions granted, and it is declared that plaintiff owes no coverage obligation to Sky Acupuncture, P.C. for no-fault benefits for the injured claimants.

The failure to attend duly scheduled medical exams voids the policy ab initio (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]). Accordingly, when defendants’ assignors failed to appear for the requested medical exams, plaintiff had the right to deny all claims retroactively to the date of loss, regardless of whether the denials were timely issued (see Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]; Unitrin, 82 AD3d at 560). [*2]

” ‘[A] properly executed affidavit of service raises a presumption that a proper mailing occurred, and a mere denial of receipt is not enough to rebut this presumption’ ” (Matter of Ariel Servs., Inc. v New York City Envtl. Control Bd., 89 AD3d 415, 415 [1st Dept 2011]). “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” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]).

Plaintiff submitted competent evidence that the notices scheduling the claimant’s medical examinations were mailed, as well as the failure to appear, based on the sworn affidavits of the scheduled examining physician and his employee (see American Tr. Ins. Co. v Solorzano, 108 AD3d 449, 449 [1st Dept 2013]). Contrary to defendants’ contention, the affidavits were not conclusory, as they established personal knowledge, the employee’s role in the physician’s no-fault department, and the physician’s personal knowledge of the office procedures when a claimant failed to appear for a medical exam (cf. First Help Acupuncture, P.C. v Lumbermens Mut. Ins. Co., 9 Misc 3d 1127[A], 2005 NY Slip Op 51815[U] [Civ Ct, Kings County 2005], affd 14 Misc 3d 142[A], 2007 NY Slip Op 50365[U] [App Term, 2d Dept 2007]).

There is no requirement to demonstrate that the claims were timely disclaimed since the failure to attend medical exams was an absolute coverage defense (see New York & Presbyt. Hosp. v Country-Wide Ins. Co., 17 NY3d 586, 593 [2011]; Unitrin Advantage Ins. Co., 82 AD3d at 560). Concur—Mazzarelli, J.P., Acosta, Saxe, Richter and Feinman, JJ.

—[*1] George C. Dinstber III, Cincinnatus, appellant pro se.

Goldberg & Segalla, LLP, Buffalo (Bryan D. Richmond of counsel), for respondent.

Stein, J. Appeal from an order of the Supreme Court (Rumsey, J.), entered December 28, 2011 in Cortland County, which, among other things, granted defendant’s motion for partial summary judgment.

In January 2002, plaintiff notified defendant, his no-fault insurance carrier, that he had been injured in a motor vehicle accident. Defendant thereafter denied his no-fault claim, prompting plaintiff to commence this action in which he asserted claims of breach of contract and tort, with a concomitant request for punitive damages. After joinder of issue, and various motions brought by each party and appeals related thereto (96 AD3d 1198 [2012]; 75 AD3d 957 [2010]), defendant moved for summary judgment dismissing plaintiff’s tort claim and accompanying demand for punitive damages, alleging that the claim failed to state a cause of action (see CPLR 3211 [a] [7]). Plaintiff cross-moved for, among other things, leave to amend the complaint. In a December 2011 order, Supreme Court granted defendant’s motion, dismissed the tort claim and denied plaintiff’s cross motion. On plaintiff’s appeal, we now affirm.

Although “damages arising from the breach of a contract will ordinarily be limited to the contract damages necessary to redress the private wrong, . . . punitive damages may be recoverable if necessary to vindicate a public right” (New York Univ. v Continental Ins. Co., 87 NY2d 308, 315 [1995]), but only where a defendant’s conduct was (1) actionable as an independent tort, (2) egregious, (3) directed toward the plaintiff and (4) part of a pattern directed at the public (see id. at 316; Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 613[*2][1994]). Thus, “[w]here a lawsuit has its genesis in the contractual relationship between the parties, the threshold task for a court considering [a] defendant’s motion to dismiss a cause of action for punitive damages is to identify a tort independent of the contract” (New York Univ. v Continental Ins. Co., 87 NY2d at 316). In this regard, a “defendant may be liable in tort when it has breached a duty of reasonable care distinct from its contractual obligations, or when it has engaged in tortious conduct separate and apart from its failure to fulfill its contractual obligations” (id.). Nonetheless, “where a party is merely seeking to enforce its bargain, a tort claim will not lie” (id.).

Here, plaintiff seeks an award of punitive damages based upon his allegation that defendant engaged in “bad faith tactics” by failing to promptly investigate his no-fault claim and failing to renew his insurance policy. Such claim does not allege a breach of duty distinct from defendant’s contractual obligations. Further, while plaintiff alleged a violation of Insurance Law § 2601 based upon defendant’s purported failure to timely investigate his no-fault claim, New York does not recognize a private cause of action under that statute (see New York Univ. v Continental Ins. Co., 87 NY2d at 317-318; Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d at 604; Kantrowitz v Allstate Indem. Co., 48 AD3d 753, 754 [2008]). In light of the foregoing, even if we construe the complaint liberally, accept as true the facts as alleged and accord plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Murray Bresky Consultants, Ltd v New York Compensation Manager’s Inc., 106 AD3d 1255, 1258 [2013]; Mesiti v Mongiello, 84 AD3d 1547, 1549 [2011]), we concur with Supreme Court that the complaint does not allege a tort existing independently from the parties’ contract (see New York Univ. v Continental Ins. Co., 87 NY2d at 320; Alexander v GEICO Ins. Co., 35 AD3d 989, 990 [2006]) and, therefore, fails to state a cause of action for punitive damages based upon tortious conduct.

Nor did Supreme Court abuse its discretion in denying plaintiff’s cross motion for leave to amend the complaint, as plaintiff failed to establish that the proposed amendment is not plainly without merit (see Matter of Greece Town Mall, L.P. v New York State, 105 AD3d 1298, 1299-1300 [2013]; Vermont Mut. Ins. Co. v Mowery Constr., Inc., 96 AD3d 1218, 1219 [2012]; see also Vectron Intl., Inc. v Corning Oak Holding, Inc., 106 AD3d 1164, 1168 [2013]). Here, plaintiff failed to submit a copy of the proposed amended pleading, and his conclusory allegations in support of his motion were insufficient to make any evidentiary showing that the proposed amendments have merit (see Chang v First Am. Tit. Ins. Co. of N.Y., 20 AD3d 502, 502 [2005]). Thus, plaintiff’s cross motion was properly denied (see Putney v People, 94 AD3d 1193, 1194-1195 [2012], appeal dismissed 19 NY3d 1020 [2012], lv denied and dismissed 21 NY3d 909 [2013]; McColgan v Brewer, 75 AD3d 876, 878 [2010]).

Rose, J.P., McCarthy and Garry, JJ., concur. Ordered that the order is affirmed, without costs.[*3]

—[*1] The Golden Law Firm, Utica (B. Brooks Benson of counsel), for petitioners-appellants.

Barth Sullivan Behr, Buffalo (Laurence D. Behr of counsel), for respondent-respondent.

Appeal from an order of the Supreme Court, Oneida County (Norman I. Siegel, A.J.), entered May 2, 2012 in a proceeding pursuant to CPLR article 75. The order granted the motion of respondent to dismiss the petition to vacate the arbitration awards.

It is hereby ordered that the order so appealed from is unanimously modified on the law by confirming the awards and as modified the order is affirmed without costs.

Memorandum: Petitioners sustained injuries in an automobile accident in June 1996, and thereafter submitted their no-fault claims for loss of earnings and medical expenses to respondent. Following respondent’s denial of most of those claims in April 1997, petitioners timely commenced a civil action in June 2002, i.e., within the six-year statute of limitations, rather than pursuing arbitration under the Insurance Law. In December 2005, shortly before the scheduled trial date, the parties agreed to submit the matter to arbitration. Petitioners’ counsel notified Supreme Court (Daley, J.), in January 2006 that the case would proceed to arbitration and requested removal of the case from the trial calendar. In December 2009, petitioners filed their request for arbitration and thereafter, in the context of the arbitration, respondent moved to dismiss petitioners’ claims on the ground that they were barred by the statute of limitations because more than 12 years had passed from accrual of the claims. The arbitrator agreed and dismissed the claims as time-barred, and a master arbitrator subsequently affirmed those awards. Petitioners thereafter commenced this proceeding in Supreme Court (Siegel, A.J.) pursuant to CPLR article 75 seeking to vacate the awards, and they now appeal from an order that, inter alia, granted respondent’s motion to dismiss the petition. Although we agree with respondent that petitioners were not entitled to vacatur of the awards, we note that the court erred in failing to confirm the awards pursuant to CPLR 7511 (e). We therefore modify the order accordingly.

Inasmuch as petitioners voluntarily pursued arbitration after they commenced a civil action, we conclude that our review is limited by the terms of CPLR 7511 (b) (1) and, “in the absence of proof of fraud, corruption, or other misconduct, the arbitrator’s determination on [the] [*2]issue[ ] of . . . the application of the [s]tatute of [l]imitations . . . is conclusive” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]). Here, petitioners offered no such proof. Contrary to petitioners’ contention, “the arbitrator had the discretion to consider whether to apply . . . the bar [of the statute of limitations]” (Siegel v Landy, 95 AD3d 989, 992 [2012]). Furthermore, we reject petitioners’ contention that the master arbitrator exceeded his power by making a de novo finding that the agreement to arbitrate lacked a waiver of the statute of limitations by respondent (see generally CPLR 7511 [b] [1] [iii]). “To exclude a substantive issue from arbitration” (Matter of Silverman [Benmor Coats], 61 NY2d 299, 308 [1984]), the limitation upon the arbitrator’s power “must be set forth as part of the arbitration clause” (id. at 307). Because no express limitation regarding the master arbitrator’s power was specified in the parties’ agreement to arbitrate, we conclude that the master arbitrator’s finding was not in excess of his power (see id. at 307-308). Present—Centra, J.P., Fahey, Lindley, Sconiers and Valentino, JJ.

—[*1] The Zuppa Firm PLLC, Garden City, N.Y. (Raymond J. Zuppa of counsel), for appellant.

Rivkin Radler LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F. Korman, Michael P. Versichelli, and Stuart M. Bodoff of counsel), for respondent State Farm Mutual Automobile Insurance Company.

Schenk, Price, Smith & King, LLP, New York, N.Y. (John P. Campbell of counsel), for respondents 684 Associates, Ltd., doing business as D&D Associates, Hooper Evaluations, Inc., Hooper Holmes, Inc., DDA Management Services, LLC, Brian Darmody, Anthony Minichini, and George Vadyak.

Lewis Johs Avallone Aviles, LLP, Islandia, N.Y. (Ann K. Kandel of counsel), and Leonard J. Tartamella, Hauppauge, N.Y., for respondents Medical Management Group of New York, Inc., and William Polikoff (one brief filed).

Aaronson Rappaport Feinstein & Deutsch, LLP, New York, N.Y. (Elliott J. Zucker of counsel), for respondent Marlon Seliger.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), dated August 31, 2011, as granted the separate motions of the defendant State Farm Mutual Automobile Insurance Company, the defendants Hooper Evaluations, Inc., Hooper Holmes, Inc., 684 Associates, Ltd., doing business as D&D Associates, DDA Management Services, LLC, Brian Darmody, Anthony Minichini, and George Vadyak, the defendant Stephan Schector, the defendants Medical Management Group of New York, Inc., and William Polikoff, and the defendant Marlon Seliger to dismiss the complaint insofar as asserted against each of them pursuant to CPLR 3211 (a) (7).

Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendant State Farm Mutual Automobile Insurance Company which was pursuant to CPLR 3211 (a) (7) to dismiss the first cause of action, which alleged breach of contract, and substituting therefor a provision denying that branch of the motion; as so [*2]modified, the order is affirmed insofar as appealed from, with one bill of costs payable by the plaintiff to the defendants Hooper Evaluations, Inc., Hooper Holmes, Inc., 684 Associates, Ltd., doing business as D&D Associates, DDA Management Services, LLC, Brian Darmody, Anthony Minichini, and George Vadyak, the defendants Medical Management Group of New York, Inc., and William Polikoff, and the defendant Marlon Seliger, appearing separately and filing separate briefs.

A cause of action premised upon fraud cannot lie where it is based on the same allegations as a cause of action alleging breach of contract (see Yenrab, Inc. v 794 Linden Realty, LLC, 68 AD3d 755 [2009]; Heffez v L & G Gen. Constr., Inc., 56 AD3d 526 [2008]). Where “a claim to recover damages for fraud is premised upon an alleged breach of contractual duties and the supporting allegations do not concern representations which are collateral or extraneous to the terms of the parties’ agreement, a cause of action sounding in fraud does not lie” (Yenrab, Inc. v 794 Linden Realty, LLC, 68 AD3d at 757 [internal quotation marks omitted]; see McKernin v Fanny Farmer Candy Shops, 176 AD2d 233, 234 [1991]). Here, the fraud cause of action against the defendant State Farm Mutual Automobile Insurance Company (hereinafter State Farm) is based on the same allegations as the breach of contract cause of action. Accordingly, the Supreme Court properly granted that branch of State Farm’s motion which was pursuant to CPLR 3211 (a) (7) to dismiss the third cause of action, sounding in fraud, insofar as asserted against it.

Further, the Supreme Court properly granted those branches of the separate motions of the remaining defendants which sought to dismiss the fraud cause of action insofar as asserted against each of them. A cause of action to recover damages for fraud requires allegations of (1) a false representation of fact, (2) knowledge of the falsity, (3) intent to induce reliance, (4) justifiable reliance, and (5) damages (see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]; Pace v Raisman & Assoc., Esqs., LLP, 95 AD3d 1185 [2012]). Moreover, CPLR 3016 (b) requires that the circumstances underlying a cause of action based on fraud be stated “in detail” (see Scott v Fields, 92 AD3d 666, 668 [2012]). Here, the allegations of fraud against the remaining defendants either were bare and conclusory or do not rise to the level of fraud. Consequently, the Supreme Court properly granted those branches of the separate motions of the remaining defendants which were pursuant to CPLR 3211 (a) (7) to dismiss the third cause of action insofar as asserted against each of them.

However, the Supreme Court erred in granting that branch of State Farm’s motion which was to dismiss the first cause of action, which alleged breach of contract. The first cause of action contained sufficient factual allegations to state a cause of action to recover damages for breach of contract against State Farm. The complaint alleged, among other things, that the plaintiff entered into an insurance contract for State Farm to provide the plaintiff with no-fault insurance benefits if he was involved in a car accident, and that State Farm breached the contract by denying coverage for medical services. Since the allegations in the complaint were sufficient to state a breach of contract cause of action, the Supreme Court should have denied that branch of State Farm’s motion which was pursuant to CPLR 3211 (a) (7) to dismiss the first cause of action.

The Supreme Court properly granted that branch of State Farm’s motion which was pursuant to CPLR 3211 (a) (7) to dismiss the second cause of action, which sought consequential damages for breach of the no-fault insurance benefits policy. The plaintiff’s prolix allegations, when “[s]tripped of their verbiage” (United States Fid. & Guar. Co. v Pressler, 77 NY2d 921, 923 [1991]), do not adequately plead facts that would support a finding that his damages for pain and suffering arose out of State Farm’s alleged breach of its obligations under its no-fault insurance contract with him (see id. at 923).

The plaintiff’s remaining contention is without merit. Balkin, J.P., Chambers, Roman and Hinds-Radix, JJ., concur.

[*1]

Second Department, April 10, 2013

Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 30 Misc 3d 131(A), 2011 NY Slip Op 50033(U), reversed.

APPEARANCES OF COUNSEL

Joseph Henig, P.C., Bellmore, for appellant.

Michael S. Nightingale, Glen Cove (Bryan G. Melnick of counsel), for respondent.

{**106 AD3d at 158} OPINION OF THE COURT

Austin, J.

On this appeal, we are asked to determine whether a no-fault UB-04 form is the functional equivalent of a no-fault New York State Form N-F 5 (hereinafter N-F 5 form), the receipt of which triggers the 30-day period in which a no-fault insurer is required to pay or deny a claim for no-fault benefits or request further verification. For the following reasons, we answer in the negative and reverse the order of the Appellate Term of the Supreme Court for the Ninth and Tenth Judicial Districts (hereinafter the Appellate Term).

Barbara Kocourek was involved in a motor vehicle accident on October 30, 2008. At the time of the accident, the defendant, New York Central Mutual Fire Insurance Company (hereinafter New York Central), was Kocourek’s motor vehicle insurance carrier. Kocourek’s New York Central policy included the New York State mandated personal injury protection endorsement.

After the accident, Kocourek sought treatment for her injuries from the plaintiff Sound Shore Medical Center (hereinafter Sound Shore) between November 7, 2008, and November 12, 2008. Kocourek assigned her no-fault benefits to Sound Shore.{**106 AD3d at 159}

On November 24, 2008, New York Central received a UB-04 form from Sound Shore. Kocourek was identified as the patient and Sound Shore as the medical provider.^[FN1] According to the UB-04 form, which was generated on November 19, 2008, Sound Shore had provided $13,053.02 in services to Kocourek for treatment rendered from November 7, 2008, through [*2]November 12, 2008. The remarks section of the form stated “NO FAULT INSURANCE,” with New York Central’s name and address. The UB-04 form was not accompanied by an N-F 5 form, or any other documentation.^[FN2]

In response to Sound Shore’s submission of the UB-04 form, New York Central issued what it considered the first of two successive “requests for verification” on November 26, 2008. In its November 26, 2008, request, New York Central noted that “consideration” of this no-fault claim had been “delayed” because it was, inter alia, “[a]waiting application for NF benefits from patient” and “need[ed] a valid DRG code.”^[FN3]

On December 22, 2008, New York Central received an N-F 5 form, dated December 17, 2008, which had been prepared by an “authorized representative” of Sound Shore. The N-F 5 form was accompanied by a second UB-04 form which contained a notation that the UB-04 form was not a “no-fault bill” and referred to the N-F 5 form as “the authorized no-fault bill.” According to the N-F 5 form, Sound Shore was owed a total of $4,834.95 for services rendered to Kocourek. Along with the N-F 5 and UB-04 forms, Sound Shore also sent New York Central a “DRG Master Output Report” detailing how the total bill of $4,834.95 was calculated using the no-fault regular DRG rate, and an assignment of benefits form indicating that Kocourek executed the assignment on November 12, 2008. The assignment of benefits form was not signed by Kocourek, and indicated that Kocourek’s signature was “on file.”

New York Central’s receipt of the N-F 5 form prompted it to issue what it considered to be its second request for verification, dated December 31, 2008. In its December 31, 2008, request for{**106 AD3d at 160} verification, New York Central sought the admitting narratives, pertinent lab tests and/or X-ray results, discharge summary, and an assignment of benefits executed by Kocourek. All of these items had been previously requested by New York Central in its November 26, 2008, correspondence to Sound Shore. In its December 31, 2008 request, New York Central also asked for the EKG report and an explanation of the relationship between the motor vehicle accident and the treatment rendered. Further, it advised Sound Shore that the unsigned assignment form provided was not acceptable pursuant to the New York State insurance regulations.

Although Sound Shore did not respond to the December 31, 2008, request for verification, New York Central took no further action. It did not deny Sound Shore’s claim nor did it send any additional request for verification.

Sound Shore subsequently commenced this action against New York Central in the District Court, Nassau County, to recover no-fault medical payments. As its first cause of action, it sought no-fault medical payments totalling $4,834.95 for services it rendered to Kocourek.^[FN4] As an affirmative defense, New York Central asserted, inter alia, that this action was premature due to its “outstanding requests for verification” to which Sound Shore never responded.

New York Central moved for summary judgment dismissing the first cause of action. It argued that Sound Shore’s action was premature since Sound Shore failed to respond to its initial November 26, 2008, request for verification and its December 31, 2008, follow-up request for verification by not providing the admitting narratives, lab tests/X-ray results, discharge summary, and EKG report. Consequently, New York Central argued that the time for it to either pay the claim or issue a denial was tolled indefinitely.

Sound Shore cross-moved for summary judgment in its favor on the first cause of action, contending that it never actually billed New York Central until the N-F 5 form was sent on December 17, 2008. It argued, inter alia, that as a result, New York Central’s November 26, 2008, request for verification was a nullity since it predated the N-F 5 form, which was received by New York Central on December 22, 2008. Thus, Sound Shore maintained that there was no toll in effect, [*3]and that New York{**106 AD3d at 161} Central was now precluded from interposing a defense to the first cause of action.

The District Court denied New York Central’s motion for summary judgment dismissing the first cause of action and granted Sound Shore’s cross motion for summary judgment in its favor on that same cause of action. The District Court found that Sound Shore had established its prima facie entitlement to summary judgment in its favor by demonstrating that it submitted a claim for no-fault benefits to New York Central setting forth the amount it was owed and proof that New York Central failed to timely pay. The District Court also found that New York Central failed to raise a triable issue of fact in response to Sound Shore’s establishment of its entitlement to judgment as a matter of law, or to meet its burden in proving that it mailed timely requests for verification, to which responses remained outstanding.

New York Central appealed the order of the District Court to the Appellate Term. The Appellate Term reversed the order of the District Court, granted New York Central’s motion for summary judgment dismissing the first cause of action and denied Sound Shore’s cross motion (30 Misc 3d 131[A], 2011 NY Slip Op 50033[U] [2011]). The Appellate Term found that New York Central had made a timely request for verification and a timely follow-up request to which Sound Shore failed to respond. As a result, the Appellate Term determined that New York Central’s time to respond to Sound Shore’s claim had been tolled. The Appellate Term’s conclusion relied on its determination that the initial UB-04 form served by Sound Shore upon New York Central was the “functional equivalent” of an N-F 5 form. This Court granted Sound Shore’s motion for leave to appeal.

On appeal, Sound Shore argues that the UB-04 form is not a prescribed claim form under the no-fault regulations, but is, instead, used in determining treatment and diagnosis. It maintains that an N-F 5 form, as prescribed by the no-fault regulations, is the authorized claim form for hospitals and medical providers filing first party claims as the assignees of insured patients (see 11 NYCRR 65-3.4 [c] [6]). Sound Shore contends that a UB-04 form does not contain substantially the same information as an N-F 5 form, and that the information which is not included in the UB-04 form is essential to a no-fault claim. Sound Shore maintains that, as a result, the UB-04 form was not the “functional equivalent” of an N-F 5 form and, thus, New York Central’s December 31, 2008, request for verification{**106 AD3d at 162} was a first request and not a follow-up request. Therefore, it asserts that New York Central’s time to pay or deny its claim was not tolled.

New York Central argues that since it sent a request for verification in response to the November 24, 2008, UB-04 form sent by Sound Shore, its December 31, 2008, request was the second of two successive requests for verification, so it had no duty to make any further follow-up requests for verification. Since Sound Shore did not respond to either request, New York Central contends that its time to act was tolled. We hold that the UB-04 form sent by Sound Shore is not the “functional equivalent” of an N-F 5 form. Accordingly, we reverse.

Pursuant to the regulations promulgated by the Superintendent of Insurance to implement the No-Fault Law (Insurance Law art 51), an injured party, or that person’s assignee, must submit a written notice of claim to an insurer no later than 45 days after services are rendered (11 NYCRR 65-2.4). The written notice required to obtain first party benefits “shall be deemed to be satisfied by the insurer’s receipt of a completed prescribed application for motor vehicle no-fault benefits (NYS Form N-F 2) . . . or by the insurer’s receipt of a completed hospital facility form (NYS Form N-F 5)” (11 NYCRR 65-3.3 [d]). “[P]roof of claim . . . shall include verification of all of the relevant information requested” (11 NYCRR 65-3.8 [a] [1]). “An insurer must accept proof of claim submitted on a form other than a prescribed form if it contains substantially the same information as the prescribed form” (11 NYCRR 65-3.5 [f]). However, 11 NYCRR 65-3.5 (g) provides that

“[I]n lieu of a prescribed application for motor vehicle no-fault benefits submitted by an applicant [NYS Form N-F 2] and a verification of hospital treatment (NYS form NF-4), an insurer shall accept a completed hospital facility form (NYS form NF-5) (or an NF-5 and uniform billing form [UBF-1] which together supply all the information requested by the NF-5) submitted by a provider of health services with respect to the claim of such provider.”

Within 30 calendar days after receipt of the proof of claim for no-fault benefits, an insurer can either pay the claim, in whole or in part, deny it, or seek verification of it (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]). A no-fault insurance carrier waives its defenses, other than those based on the complete absence of coverage (e.g., a defense to the effect that it never{**106 AD3d at 163} wrote a [*4]policy for the claimant), if it fails to deny a no-fault claim, or seek verification, within 30 calendar days after having received proof of claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; [c]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 279 [1997]).

When a no-fault claim has been assigned to a hospital or medical provider and the hospital or medical provider sends an N-F 5 form to the no-fault insurer, the no-fault insurer’s receipt of an N-F 5 form triggers the running of the 30-day period within which the insurer has a duty to pay or to deny the claim, or to seek verification of it (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]). Subsequent to the receipt of the N-F 5 form, if the insurer requires any additional information to evaluate the proof of claim, such request for verification must be made within 15 business days of the receipt of the N-F 5 form in order to toll the 30-day period (see 11 NYCRR 65-3.5 [b]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 317). Where there is a timely original request for verification, but no response to the request for verification is received within 30 calendar days thereafter, or the response to the original request for verification is incomplete, then the insurer, within 10 calendar days after the expiration of that 30-day period, must follow up with a second request for verification (see 11 NYCRR 65-3.6 [b]). If there is no response to the second, or follow-up, request for verification, the time in which the insurer must decide whether to pay or deny the claim is indefinitely tolled (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 317; see also Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862, 864-865 [2009]). Thus, when a no-fault medical service provider fails to respond to the requests for verification, the 30 days in which to pay or deny the claim is tolled and does not begin to run (see Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889, 890 [2007]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 700 [2001]). Accordingly, any claim for payment by the medical service provider after two timely requests for verification have been sent by the insurer subsequent to its receipt of an N-F 5 form from the medical service provider is premature, if the provider has not responded to the requests (see Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d at 890; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d at 570). Nothing in the rules requires a second follow-up, that is, a third request for verification.{**106 AD3d at 164}

However, a request for verification that precedes a no-fault insurer’s receipt of the prescribed N-F 5 claim form does not trigger the tolling of the 30-day period within which an insurer must determine whether to pay or deny such a claim (see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603, 604 [2011]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 17 [1999]). The “UBF-1” form referred to in 11 NYCRR 65-3.5 (g) is the predecessor of the current “UB-04” form. Under 11 NYCRR 65-3.5 (g), a UBF-1/UB-04 form together with an N-F 5 form must be accepted by a no-fault insurer. The regulation does not state that a UBF-1/UB-04 form alone must be treated as the “functional equivalent” of an N-F 5 form. Further, the UB-04 form sent by Sound Shore to New York Central differed from the N-F 5 form Sound Shore eventually submitted to New York Central in that the UB-04 form did not include the policy number, a description of the accident, or the admitting and discharge diagnosis, and the amount charged was $13,053.02 rather than $4,834.95. Accordingly, we do not agree with the Appellate Term’s conclusion that a UB-04 form is the “functional equivalent” of an N-F 5 form (see 11 NYCRR 65-3.5 [f]). The only effective request for verification was therefore the one issued by New York Central on December 31, 2008, some six business days after its receipt of Sound Shore’s N-F 5 form on December 22, 2008 (see 11 NYCRR 65-3.5 [b]).

We note that the issuance of the request for verification on December 31, 2008, by New York Central resulted in an initial toll of the 30-day period within which to pay or deny the claim (see New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 700-701 [2001]). When Sound Shore failed to respond to New York Central’s December 31, 2008, request for verification by January 30, 2009, New York Central had until February 9, 2009, to issue a follow-up request for verification in order to invoke the protection of the indefinite tolling of its time to pay or deny the claim (see 11 NYCRR 65-3.6 [b]; Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 431 [1996]). Thereafter, no further request for verification was issued by New York Central.

Since the initial toll of the 30-day period following Sound Shore’s submission of the N-F 5 form to New York Central had expired by the time this action was commenced, the first cause of action was not premature. Thus, Sound Shore established its prima facie entitlement to judgment as a matter of law with respect to the first cause of action by demonstrating that the necessary{**106 AD3d at 165} billing documents were mailed to, and received by, New York Central and that payment of no-fault benefits [*5]was overdue (see New York Hosp. Med. Ctr. of Queens v Country Wide Ins. Co., 82 AD3d 723, 723 [2011]; Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603, 604 [2011]).

In opposition, New York Central failed to raise a triable issue of fact as to whether it timely denied Sound Shore’s claim. New York Central failed to submit any evidence that it mailed a second or follow-up request for verification at the end of the 30-day period subsequent to mailing the initial request for verification on December 31, 2008, which would have tolled its time to pay no-fault benefits to Sound Shore (see Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d at 604). For this same reason, New York Central failed to meet its prima facie burden on its own motion for summary judgment (see id.).

Accordingly, the order dated January 10, 2011, is reversed, on the law, and the order of the District Court, Nassau County, dated August 31, 2009, is reinstated.

Angiolillo, J.P., Dickerson and Cohen, JJ., concur.

Ordered that the order dated January 10, 2011, is reversed, on the law, with costs, and the order of the District Court, Nassau County, dated August 31, 2009, is reinstated.

Footnotes

Footnote 1: The UB-04 form is a universal billing form developed by, among others, the National Uniform Billing Committee, which was formed in 1975 by the American Hospital Association.

Footnote 2: The N-F 5 form is published by the New York State Department of Financial Services in 11 NYCRR Appendix 13.

Footnote 3: DRG is an abbreviation for diagnosis related group. DRG is a system used to classify patients into groups based on criteria such as principal diagnosis, treatment given, age, gender, etc. Each patient in a DRG is expected to utilize similar medical resources.

Footnote 4: The second cause of action, which sought to recover unrelated no-fault medical payments, was settled pursuant to stipulation dated March 20, 2009.

—[*1] Law Office of Brian D. Richardson, Albany (James D. Taylor of counsel), for appellant.

Law Offices of Craig Meyerson, Latham (Craig Meyerson of counsel), for respondent.

Egan Jr., J. Appeals (1) from an order of the Supreme Court (Platkin, J.), entered February 1, 2012 in Albany County, which, among other things, granted plaintiff’s motion for a turnover order, and (2) from an order of said court, entered March 6, 2012 in Albany County, which ordered defendant to pay $5,254.02 to satisfy a judgment in favor of plaintiff.

This appeal has its genesis in defendant’s attempt to recoup $825.55 to which it claims entitlement as a credit against a judgment entered in favor of plaintiff. By way of background, plaintiff provided psychological services to certain of defendant’s insureds who had suffered injuries arising out of no-fault automobile accidents and, in May 2009, plaintiff commenced this action against defendant seeking reimbursement for those services. Following joinder of issue, various motions ensued and, in February 2011, Supreme Court, among other things, granted plaintiff partial summary judgment and entered a judgment in favor of plaintiff for $80,187.27, plus interest, counsel fees and costs. There is no indication in the record that defendant appealed from the order awarding partial summary judgment to plaintiff, moved for reconsideration thereof or sought to vacate the resulting judgment. Instead, defendant only partially satisfied the judgment, contending that it was entitled to various credits against the sum due and owing.

Faced with defendant’s refusal to tender the full amount due, plaintiff thereafter moved for—insofar as is relevant here—a turnover order pursuant to CPLR 5225 seeking to recover the [*2]outstanding balance. Defendant opposed the requested relief, contending that it had paid the judgment in full, and submitted checks purportedly reflecting payments made on the outstanding claims. By order entered February 1, 2012, Supreme Court granted plaintiff the requested relief, suggesting that defendant’s proffer of the canceled checks was untimely and, in any event, finding such proof to be insufficient to demonstrate full satisfaction of the judgment. Thereafter, by order entered March 6, 2012, Supreme Court awarded plaintiff $5,254.02, representing the outstanding amount due and owing in full satisfaction of the prior judgment. Defendant now appeals, contending that it is entitled to a credit of $825.55 for payments previously made.^[FN1]

We affirm. Initially, we reject defendant’s assertion that Supreme Court erred in summarily granting plaintiff’s application. A summary judgment analysis may be employed where, as here, a party is seeking a turnover order pursuant to CPLR 5225 (a) (cf. Matter of Centerpointe Corporate Park Partnership 350 v MONY, 96 AD3d 1401, 1402 [2012], lv dismissed 19 NY3d 1097 [2012]; Matter of TNT Petroleum, Inc. v Sea Petroleum, Inc., 72 AD3d 694, 695 [2010]; Estate of Giustino v Estate of DelPizzo, 21 AD3d 523, 523 [2005]), and plaintiff made a prima facie showing that—at that point in time—the underlying judgment had not been paid in full. Although defendant tendered various canceled checks in opposition to plaintiff’s application and the record indeed reflects a history of partial payments, we agree with Supreme Court that defendant’s submissions in this regard failed to correlate with the dates or amounts of the outstanding claims at issue and, for that reason, were insufficient to raise a question of fact as to its satisfaction of the judgment. Accordingly, Supreme Court properly granted plaintiff’s request for a turnover order and directed that defendant pay plaintiff $5,254.02 in full satisfaction of the underlying judgment.

We also are persuaded that defendant’s pursuit of this appeal is frivolous within the meaning of 22 NYCRR 130-1.1 (c) (2) and, therefore, plaintiff is entitled to an award of reasonable counsel fees incurred in responding thereto.^[FN2] To our analysis, once plaintiff was awarded partial summary judgment in February 2011 and secured a judgment in its favor, defendant had several permissible options, such as appealing the underlying order and judgment or paying—in full—the amount awarded to plaintiff. Instead, defendant continued to dispute the sum due by delaying payment, thereby compelling plaintiff to move for the turnover order and, ultimately, to expend resources responding to the instant appeal seeking $825.55. Such conduct, in our view, warrants an award of reasonable counsel fees incurred in responding to this appeal, and this matter is remitted to Supreme Court for a determination of the amount of such fees (see Matter of Manufacturers & Traders Trust Co. v Myers, 38 AD3d 965, 966 [2007], appeal dismissed 8 NY3d 1019 [2007]; Hansen v Werther, 2 AD3d 923, 924 [2003]). Defendant’s remaining arguments, to the extent not specifically addressed, have been considered and found to be lacking in merit. [*3]

Peters, P.J., Spain and Garry, JJ., concur. Ordered that the orders are affirmed, with costs, plaintiff’s request for counsel fees granted and matter remitted to the Supreme Court for a determination of the amount of reasonable counsel fees incurred in responding to this appeal.

Footnotes

Footnote 1: In the interim, according to plaintiff, defendant satisfied the underlying judgment.

Footnote 2: Plaintiff’s request in this regard, which is set forth in its appellate brief, “constitute[s] sufficient notice [to defendant] that such relief would be considered” (Matter of Levin v Axelrod, 168 AD2d 178, 181 [1991]; see Hansen v Werther, 2 AD3d 923, 924 [2003]).