—[*1] Amos Weinberg, Great Neck, N.Y., for appellants.

Freiberg, Peck & Kang, LLP, Armonk, N.Y. (Yilo J. Kang and Craig Freiberg of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of claims for no-fault insurance benefits, the appeal is from an order of the Supreme Court, Queens County (Strauss, J.), entered October 4, 2011, which granted the petition to permanently stay arbitration, and dismissed the appellants’ counterclaims.

Ordered that the order is modified, on the law, by deleting the provision thereof granting the petition to permanently stay arbitration, and substituting therefor a provision denying the petition; as so modified, the order is affirmed, with costs to the appellants.

American Independent Insurance Company (hereinafter AIIC) commenced this proceeding to permanently stay arbitration of the appellants’ claims for no-fault benefits on the ground that AIIC is not subject to personal jurisdiction in New York. Pursuant to CPLR 7503 (b), a petition to stay arbitration may be granted on the limited grounds that a valid agreement to arbitrate was not made or has not been complied with, or that the claim sought to be arbitrated is barred by the statute of limitations. In addition, case law recognizes limited instances where arbitration is prohibited on public policy grounds (see Matter of City of New York v Uniformed Fire Officers Assn., Local 854, IAFF, AFL-CIO, 95 NY2d 273, 280 [2000]). Lack of personal jurisdiction is not a basis for granting a stay of arbitration.

In Matter of Government Empls. Ins. Co. v Basedow (28 AD3d 766 [2006]) and Matter of Eagle Ins. Co. v Gutierrez-Guzman (21 AD3d 489 [2005]), upon which AIIC relies, this Court dismissed, on the ground of lack of personal jurisdiction, so much of the petitions as sought to stay arbitration and to add AIIC as an additional respondent for the resolution of threshold issues. While these cases reinforce the rule that personal jurisdiction must first be obtained over a party before judgment may be entered upon an arbitration award (see Sargant v Monroe, 268 App Div 123, 126 [1944]), the petitioner’s reliance upon them is misplaced. There is a strong public policy favoring arbitration, and courts interfere as little as possible with the freedom of parties to submit their disputes to arbitration (see Matter of Smith Barney Shearson v Sacharow, 91 NY2d 39, 49 [1997]; Shah v Monpat Constr., Inc., 65 AD3d 541, 543 [2009]). Pursuant to CPLR 7503, courts decide threshold issues before compelling or [*2]staying arbitration (see Merrill Lynch, Pierce, Fenner & Smith v Benjamin, 1 AD3d 39, 43-44 [2003]). Here, AIIC has failed to allege, pursuant to CPLR 7503 (b), that a valid arbitration agreement was not made or complied with, that the claim sought to be arbitrated was barred by the statute of limitations, or that public policy precluded arbitration of this matter. Indeed, AIIC failed to provide in the record a copy of the relevant policy of insurance by which the terms and circumstances of arbitration may be reviewed. Contrary to AIIC’s contentions, Matter of Government Empls. Ins. Co. v Basedow and Matter of Eagle Ins. Co. v Gutierrez-Guzman are not controlling, since the issue of personal jurisdiction in those cases arose in the context of an ongoing legal proceeding, where the petitioners sought to add AIIC as a party. Here, in contrast, AIIC seeks to permanently stay an arbitration on jurisdictional arguments outside of the limited grounds recognized by CPLR 7503 and its interpretive case law.

At this pre-arbitration stage, the issue is not whether New York courts have jurisdiction over AIIC, but whether the arbitrator has authority under the terms of the insurance contract to award no-fault benefits to the appellants (see American Ind. Ins. v Gerard Ave. Med. P.C., 12 Misc 3d 1176[A], 2005 NY Slip Op 52302[U] [Sup Ct, Bronx County 2005]). Without providing a copy of the policy of insurance, AIIC could not establish that a valid arbitration agreement is not controlling. Our recognition in other cases that New York State courts do not have personal jurisdiction over AIIC does not entitle AIIC to, in effect, a declaration that the arbitrator does not have authority and jurisdiction over AIIC. While personal jurisdiction is required for the exercise of the state’s judicial power over a party, arbitration is a form of dispute resolution almost wholly independent of the court system (see Siegel, NY Prac § 586 at 1050 [5th ed 2011]). “Except for a few basic guarantees, such as the right to be heard and to be represented by counsel at the arbitration, the procedural law of the state is also inapplicable to arbitration, including the rules of evidence” (id. at 1052). In short, personal jurisdiction is not required for arbitration that is controlled by the parties’ agreement. Therefore, the Supreme Court erred in granting the petition to permanently stay arbitration on the ground that there was no personal jurisdiction over AIIC.

The Supreme Court properly dismissed the appellants’ counterclaims. The appellants demanded an arbitration, and they may not choose different forums for the resolution of issues or items of damages arising from a single injury (see Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260, 262 [1985]; Cortez v Countrywide Ins. Co., 17 AD3d 508 [2005]). Dillon, J.P., Chambers, Sgroi and Miller, JJ., concur.

[*1]

Second Department, October 17, 2012

A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 70, reversed.

APPEARANCES OF COUNSEL

Alden Banniettis, Brooklyn (Jeff Henle of counsel), for appellant.

McCormack & Mattei, P.C., Garden City (John E. McCormack and Joshua R. Youngman of counsel), for respondent.

{**101 AD3d at 55} OPINION OF THE COURT

Angiolillo, J.P.

The plaintiff, a medical provider and a professional service corporation, commenced this action against the defendant insurance company to recover assigned no-fault benefits for medical services the plaintiff allegedly rendered to a covered person for injuries he sustained in an automobile accident. The Civil Court of the City of New York, Queens County, in a judgment affirmed by the Appellate Term, granted the defendant’s{**101 AD3d at 56} motion, in effect, for summary judgment dismissing the complaint on the ground that the plaintiff, on its claim forms, identified the treating medical professionals as independent contractors. We granted the plaintiff’s motion for leave to appeal from the order of the Appellate Term to address issues of apparent first impression in our Court, which frequently arise in the Civil Court and Appellate Term. First, we hold, consistent with a line of cases from the Appellate Term, that where a professional service corporation is an assignee of a person covered by a no-fault insurance policy, it is not entitled to recover first-party no-fault benefits where the treating medical professional was an independent contractor, rather than an owner or employee of the professional service corporation. Second, we hold that this defense is not exempt from the preclusion rule, which rule vitiates a denial of coverage where an insurer fails, within the statutory time limit, to issue a denial of claim on the ground on which it purports to rely. Since, here, the defendant failed to issue a timely denial of claim on the ground that the treating medical providers were independent contractors, the defendant is precluded from asserting that ground for denial of coverage as a defense in this litigation.

Factual and Procedural Background

The No-Fault Claims and Pleadings

On June 24, 2002, Sergio Chadaevi, incorrectly named herein as Sergo Chadaevi, was injured in an automobile accident. Following the accident, the plaintiff, A.M. Medical Services, P.C. (hereinafter the PC), allegedly provided medical services to Chadaevi, who assigned to the PC his [*2]right to recover first-party no-fault benefits from the responsible no-fault insurer for the cost of those services.

On July 30, 2002, the PC, as Chadaevi’s assignee, submitted two claims to the defendant, Progressive Casualty Insurance Company (hereinafter the insurer), seeking no-fault insurance benefits for services provided to Chadaevi in the amounts of $205.77 and $2,290, respectively. On the claim forms, the PC listed its name and address under the heading “Provider’s Billing Name and Address,” and stated that it was a professional service corporation owned by Ernest Horowitz, M.D. Under the heading “Treating Provider’s Name,” the PC listed two medical professionals: a physical therapist, Ashraf Ab Abdel-Halim, P.T., and a medical doctor, Leonid I. Livchits, M.D. On both claim forms, the notation “Ind. Contractor” was entered next to both treating providers under the heading “Business Relationship.”

{**101 AD3d at 57}It is undisputed that the insurer did not pay the bill for $205.77 and made partial payment of $732.90 on the second bill, leaving a balance allegedly due in the sum of $1,762.87. It is also undisputed that the insurer did not issue a written denial of the claim stating that the ground for the denial was that independent contractors were the treating providers, and it did not send the PC any requests for verification of the assignment or for other information.

By the filing of a summons and complaint, both dated September 19, 2002, the PC, as Chadaevi’s assignee, commenced this action against the insurer in the Civil Court, Queens County, to recover the sum of $1,762.87, as well as statutory interest and an attorney’s fee pursuant to Insurance Law § 5106 (a). The insurer served an answer dated October 28, 2002, denying the material allegations of the complaint and asserting several affirmative defenses, including the failure to state a cause of action and the failure to comply with the no-fault provisions of the Insurance Law generally. However, the insurer did not expressly assert the affirmative defense that the treating providers were independent contractors.

The Insurer’s Motion for Summary Judgment

By notice dated June 12, 2007, the insurer moved, in effect, for summary judgment dismissing the complaint on the ground that the PC had “no standing” to seek recovery of no-fault benefits since the medical services were rendered by independent contractors, and not the PC’s owner or employees. In support of its motion, the insurer submitted, among other things, copies of the subject claim forms, and an informal opinion of the Office of the General Counsel (hereinafter the General Counsel) of the New York State Department of Insurance (hereinafter the Insurance Department) dated February 21, 2001, representing the position of the Insurance Department. The General Counsel opined that “[w]here the health services are performed by a provider who is an independent contractor with [a professional service corporation (PC)] and is not an employee under the direct supervision of a PC owner, the PC is not authorized to bill under No-Fault as a licensed provider of those services” (Ops Gen Counsel NY Ins Dept No. 01-02-13 [Feb. 2001]).

In opposition to the insurer’s motion, the PC contended that the insurer had waived its “no standing” argument by failing to deny the claims on that ground or to request verification within the statutory time frame, citing Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (9 NY3d 312, 319-320 [2007]).{**101 AD3d at 58} The PC further contended that the insurer’s independent contractor defense was foreclosed by Matter of Health & Endurance Med., P.C. v Deerbrook Ins. Co. (44 AD3d 857 [2007]) and, in any event, that the treating providers here were not, in fact, independent contractors but were employees of the PC. In support of the latter contention, the PC submitted trial transcripts in three unrelated actions to which the insurer was not a party and asserted that, in each of those actions, the Civil Court, Queens County, determined that the subject treating providers were employees of the PC, despite having been erroneously designated as independent contractors on the claim forms due to a computer error (see A.M. Med. Servs., P.C. v Allstate Ins. Co., Civ Ct, Queens County, Sept. 20, 2007, Raffaele, J., index No. 54450/02; A.M. Med. Servs. P.C. v Allstate Ins. Co., Civ Ct, Queens County, Sept. 24, 2007, Healy, J., index No. 85935/02; A.M. Med. Servs. P.C. v Allstate Ins. Co., Civ Ct, Queens County, Aug. 9, 2007, Mayersohn, J., index No. 74118/02).

The Order and Judgment of the Civil Court

In an order dated and entered November 30, 2007, the Civil Court (Lebedeff, J.), granted the insurer’s motion. The Civil Court noted that the claim forms submitted by the PC identified the treating providers as independent contractors and held, in effect, that the PC was not the licensed provider authorized to bill the insurer for payment of no-fault benefits. On January 2, 2008, upon the order dated November 30, 2007, the Civil Court entered judgment in favor of the insurer, dismissing the complaint. The PC appealed.

The Order of the Appellate Term

In an order dated December 31, 2008, the Appellate Term of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts (Pesce, P.J., Golia and Rios, JJ.), affirmed the judgment of the Civil Court (see A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 70 [2008]). The Appellate Term held that a no-fault insurer is entitled to summary judgment dismissing a complaint asserted against it by a professional corporation where the health care services were actually rendered by an independent contractor, and that Matter of Health & Endurance Med., P.C. v Deerbrook Ins. Co. (44 AD3d 857 [2007]) did not stand for the contrary proposition (see A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d at 71).{**101 AD3d at 59}

The Appellate Term further held that

” ‘where a billing provider seeks to recover no-fault benefits for services which were not rendered by it or its employees, but rather by a treating provider who is an independent contractor, it is not a “provider” of the medical services rendered within the meaning of [11 NYCRR 65-3.11 (a)] and is therefore not entitled to recover “direct payment” of assigned no-fault benefits from the defendant insurer’ ” (id. at 72, quoting Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52, 54 [App Term, 2d Dept, 2d & 11th Jud Dists 2005]).

The Appellate Term held that “[t]he independent contractor defense is nonprecludable,” and that “[a]n insurer is not obliged to issue a denial in order to assert the nonprecludable, independent contractor defense” (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d at 72). According to the Appellate Term, the PC’s assertions that the treating providers were actually its employees, and that the claim forms misidentified them as independent contractors, were “irrelevant” since the PC failed to submit bills entitling it to payment, and the insurer justifiably relied on the claim forms. Further, the Appellate Term held that the PC was not permitted, in the midst of litigation, to argue for the first time that its claim forms were incorrect, for to do so would lead to several inequitable consequences for the insurer (id. at 72-73). Accordingly, the Appellate Term affirmed the judgment of the Civil Court (id. at 73).

We granted the PC’s motion for leave to appeal, and now reverse the order of the Appellate Term on the ground that the insurer was precluded from raising the independent contractor defense.

Analysis

On appeal, the PC contends that the insurer’s motion, in effect, for summary judgment dismissing the complaint should have been denied because the PC, as the assignee of the insured, was entitled to recover no-fault benefits for services rendered by the medical professionals identified on the PC’s claim forms as independent contractors. Alternatively, the PC contends that, if it was not entitled to recover benefits for services rendered by independent contractors, (1) the insurer failed to issue a denial of the two claims on that ground and, therefore, waived its right to raise the defense in this litigation; or (2) the PC raised a triable issue of fact as to whether the treating providers here{**101 AD3d at 60} were in fact employees of the PC and not independent contractors and, contrary to the Appellate Term’s determination, the PC should be entitled to establish in this litigation that the claim forms simply contained mistaken information. We address these issues in turn, and conclude that the PC’s contention that the insurer is precluded from raising the defense has merit.

The Independent Contractor Defense

The “primary aims” of the No-Fault Law (Insurance Law article 51) are “to ensure prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts and to provide substantial premium savings to New York motorists” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003]). The Superintendent of Insurance (hereinafter the Superintendent) has promulgated regulations implementing the No-Fault Law, currently codified in 11 NYCRR part 65. Insurance Department Regulations (11 NYCRR) § 65-3.11 (a) (formerly 11 NYCRR 65.15 [j] [1]) provides, in relevant part, for the payment of no-fault benefits “directly to the applicant . . . or, upon assignment by the applicant . . . [,] to providers of health care services as covered under section 5102(a)(1) of the Insurance Law.”

At issue here is whether the PC was entitled to recover first-party no-fault benefits under assignment from the applicant where the treating medical professionals were identified in the PC’s claim forms as independent contractors rather than owners or employees of the PC. The Appellate Term, interpreting 11 NYCRR 65-3.11 (a), has held that “[w]here a billing provider seeks [*4]to recover no-fault benefits for services which were not rendered by it or its employees, but rather by a treating provider who is an independent contractor, it is not a ‘provider’ of the medical services rendered within the meaning of Insurance Department Regulations” (A.M. Med. Servs., P.C. v Travelers Ins. Co., 23 Misc 3d 145[A], 2009 NY Slip Op 51147[U], *1 [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009], quoting 11 NYCRR 65-3.11 [a]). The Appellate Term has consistently followed this rule (see e.g. Health & Endurance Med., P.C. v Travelers Prop. Cas. Ins. Co., 31 Misc 3d 150[A], 2011 NY Slip Op 51120[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011]; Health & Endurance Med., P.C. v Liberty Mut. Ins. Co., 19 Misc 3d 137[A], 2008 NY Slip Op 50864[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2008]; V.S. Med. Servs. P.C. v Allstate Ins. Co.,{**101 AD3d at 61} 14 Misc 3d 130[A], 2007 NY Slip Op 50016[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2007]; V.S. Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 134[A], 2006 NY Slip Op 52553[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; Boai Zhong Yi Acupuncture Servs. P.C. v Allstate Ins. Co., 12 Misc 3d 137[A], 2006 NY Slip Op 51288[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; Health & Endurance Med. P.C. v State Farm Mut. Auto. Ins. Co., 12 Misc 3d 134[A], 2006 NY Slip Op 51191[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]; Craig Antell, D.O., P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50521[U] [App Term, 1st Dept 2006]; Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52 [2005]; A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 9 Misc 3d 36 [App Term, 2d Dept, 2d & 11th Jud Dists 2005]; A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 8 Misc 3d 132[A], 2005 NY Slip Op 51111[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2005]).

We have not heretofore had occasion to directly address the substantive issue raised here, involving the interpretation and application of 11 NYCRR 65-3.11 (a) to a situation in which the medical provider submitting the bill states on its claim forms that the services were rendered by an independent contractor. Contrary to the PC’s contention, this Court did not question the viability of the independent contractor defense, or even address the issue directly, in Matter of Health & Endurance Med., P.C. v Deerbrook Ins. Co. (44 AD3d 857 [2007]). In Deerbrook, we held only that an arbitrator had impermissibly, sua sponte, denied the claim of the petitioner PC on the ground that an independent contractor, not the PC, was the provider of health care services within the meaning of 11 NYCRR 65-3.11 (a), and we remitted the matter to the arbitrator for a determination of the sole issue that had been properly raised by the insurer (id. at 858). More recently, in State Farm Mut. Auto. Ins. Co. v Anikeyeva (89 AD3d 1009, 1010-1011 [2011]), this Court cited with approval the Appellate Term’s decision in the instant case (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 70 [2008]), and held that the insurer’s allegation that a professional corporation was not entitled to collect no-fault benefits for services performed by independent contractors stated a justiciable controversy sufficient to invoke the Supreme Court’s power to render a declaratory judgment. Since the Anikeyeva case was before us in the context of our review of an order denying a motion pursuant to CPLR 3211 (a) (7), we did not{**101 AD3d at 62} directly address the issue now before us, involving an interpretation of the relevant regulation.

Thus, the substantive issue raised here is a matter of first impression in this Court. We conclude that the Appellate Term correctly decided this issue, and agree with its interpretation that 11 NYCRR 65-3.11 (a) does not authorize direct payment to a medical provider which submits a bill identifying the treating provider as an independent contractor.

First, under the plain meaning of the language in the regulation, the only assignees authorized to receive direct payment of benefits are the “providers of health care services” (11 NYCRR 65-3.11 [a]). Interpretation of this term to apply to any provider of health care services would be nonsensical; in context, the term logically denotes the specific provider or providers of health care services to the applicant/insured giving rise to the assigned claim. Here, the PC did not represent on its claim forms that it was the provider of health care services to the applicant/insured, but identified two medical professionals as the “treating” providers, and stated that they were independent contractors.

Second, the common-law definition of an independent contractor supports the conclusion that the PC was not the “provider of health care services” to the applicant here.

“Generally, an independent contractor does not act as an agent of the hiring principal. Unlike an agent, whose acts are subject to the principal’s direction and control, an independent contractor is one who, in exercising an independent employment, contracts to do certain work according to his own methods, and without being subject to the control of his employer, except as to the product or result of his [*5]work” (Dora Homes, Inc. v Epperson, 344 F Supp 2d 875, 884 [ED NY 2004] [internal quotation marks and citations omitted]; see McDermott v Torre, 56 NY2d 399, 408 [1982]; Teer v Queens-Long Is. Med. Group, 303 AD2d 488, 490 [2003]).

The general rule is that a party who retains an independent contractor, as distinguished from a mere employee or servant, is not responsible for the independent contractor’s actions (see Kleeman v Rheingold, 81 NY2d 270, 273 [1993]; Hill v St. Clare’s Hosp., 67 NY2d 72, 79 [1986]; Sandra M. v St. Luke’s Roosevelt Hosp. Ctr., 33 AD3d 875, 877 [2006]). Thus, the PC’s claim forms neither established that owners or employees of the{**101 AD3d at 63} PC provided the medical services which were the subject of these claims, nor that the PC even supervised or was responsible for the acts of the independent contractors providing the services.

Third, and importantly, on February 21, 2001, the General Counsel of the Insurance Department issued an informal opinion “representing the position of the New York State Insurance Department,” in which he opined that “[w]here the health services are performed by a provider who is an independent contractor with [a professional service corporation (PC)] and is not an employee under the direct supervision of a PC owner, the PC is not authorized to bill under No-Fault as a licensed provider of those services” (Ops Gen Counsel NY Ins Dept No. 01-02-13 [Feb. 2001]). For the purposes of that opinion, the General Counsel assumed that the term “independent contractor” was used as it is usually construed under case law in New York, and opined:

“Such direct billing by the PC, due to the lack of supervisory control by the PC, may facilitate fraud, since the PC might bill under its own fee schedule as a specialist rather than the general practitioner fee schedule of the independent contractor, who actually provided the service. In addition, the patient may wrongfully believe the independent contractor’s actions are under the supervision of the PC.

“Since New York Education Law § 6509-a specifically authorizes shareholders and employees to contribute to the income of a PC, and is separate with respect to independent contractors, allowing the PC to bill for the independent contractor may constitute unlawful fee splitting. This is, of course, a determination to be made by the Education Department.

“Accordingly, since the control, and therefore the liability, of the principal for the acts of the independent contractor is attenuated, and in order to preserve the integrity of the No-Fault and physician licensing systems, this Department has determined that, when the services are provided by an independent contractor, the PC should not be considered as the ‘licensed provider’ authorized to bill under No-Fault” (id.).

{**101 AD3d at 64}This informal opinion of the General Counsel, while not binding on the courts (see generally Wolcott B. Dunham, Jr., 1-1 New Appleman New York Insurance Law § 1.08 [6]), is entitled to deference unless irrational or unreasonable (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 722 [2006]). “Responsibility for administering the Insurance Law rests with the Superintendent of Insurance (see Insurance Law § 301), who has ‘broad power to interpret, clarify, and implement the legislative policy’ ” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d at 863-864, quoting Ostrer v Schenck, 41 NY2d 782, 785 [1977]). The Superintendent’s “interpretation, if not irrational or unreasonable, will be upheld in deference to his special competence and expertise with respect to the insurance industry, unless it runs counter to the clear wording of a statutory provision” (Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444, 448 [1985]; see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d at 864).

Here, the informal opinion of the General Counsel, which represents the position of the Insurance Department and, hence, of the Superintendent, raises significant concerns such as the potential for lack of oversight, fraud, and unlawful fee splitting in the no-fault billing system. These concerns are within the legitimate scope of the Superintendent’s authority and expertise, and appear [*6]to be well-founded. The Superintendent’s conclusion that such concerns may be addressed by precluding PCs from receiving direct payments of no-fault benefits for services rendered by independent contractors is neither irrational nor unreasonable, nor contrary to statute (see Insurance Law §§ 5102, 5108). Thus, we accord deference to the Superintendent’s interpretation of 11 NYCRR 65-3.11 (a) so as to preclude a medical provider from billing for and receiving first-party no-fault benefits where it has identified the treating provider as an independent contractor.

Accordingly, the Appellate Term correctly rejected the PC’s contention that the insurer’s motion for summary judgment should have been denied on this ground.

The Preclusion Rule

It is undisputed that the insurer partially paid the subject claims and did not issue denials for the unpaid portion on the ground that the treating providers were independent contractors. Therefore, the PC contends that the insurer “waived” the {**101 AD3d at 65}independent contractor defense and was precluded from raising it in this litigation.^[FN*] The insurer contends that the Appellate Term correctly held that the insurer was under no obligation to issue a denial of claim on this ground because the independent contractor defense is “nonprecludable” (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d at 72). Further, the insurer contends that the independent contractor defense is analogous to a “lack of coverage” defense and, therefore, falls within the exception to the preclusion rule. We do not agree with the insurer’s contentions in this regard, and hold that the insurer was precluded from asserting this defense by virtue of its failure to specify this ground for denial in its denial of claim.

The regulations promulgated by the Superintendent implementing the No-Fault Law include circumscribed time frames for claim procedures. As relevant hereto, a medical provider, as an assignee of an insured or covered person or applicant, must submit proof of the claim no later than 45 days after medical services are rendered (see 11 NYCRR 65-1.1, 65-2.4 [c]) and, upon receipt of the claim, an insurer has 15 business days within which to request proof of the assignment or any other additional verification of the claim that it may require (see 11 NYCRR 65-3.5 [b]; 65-3.11 [c]). The insurer must pay or deny the claim within 30 calendar days after receipt of the proof of claim, or after receipt of items pursuant to a request for verification (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; [c]).

There are “substantial consequences” of “[a]n insurer’s failure to pay or deny a claim within 30 days” (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]). Significantly, “a[n] [insurance] carrier that fails to deny a claim within the 30-day period is generally precluded from asserting a defense against payment of the claim” (id. at 318; see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282-283 [1997]). A “narrow exception to this preclusion remedy” is recognized for “situations where an insurance company raises a defense of lack of coverage” (Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 318; see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). The rationale for this exception is{**101 AD3d at 66}

” ‘that the Legislature in using the words “denial of coverage” did not intend to require notice when there never was any insurance in effect, and intended by that phrase to cover only situations in which a policy of insurance that would otherwise cover the particular accident is claimed not to cover it because of an exclusion in the policy’ ” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 200, quoting Zappone v Home Ins. Co., 55 NY2d 131, 138 [1982], and Insurance Law former § 167 [8], the predecessor to Insurance Law § 3420 [d] [2]).

In other words, if “the insurance policy does not contemplate coverage in the first instance, . . . requiring payment of a claim upon failure to timely disclaim would create coverage where it never existed” (Matter of Worcester Ins. Co. v Bettenhauser, 95 NY2d 185, 188 [2000]). [*7]

In subsequent opinions, the Court of Appeals refined the scope of the exception to the preclusion rule. In Fair Price Med. Supply Corp. v Travelers Indem. Co. (10 NY3d 556 [2008]), the insurer contended that the billed-for services were never rendered. The Court held that this defense did not fall within the exception to the preclusion rule, writing:

“More fundamentally, determining whether a specific defense is precluded under Presbyterian or available under Chubb entails a judgment: Is the defense more like a ‘normal’ exception from coverage (e.g., a policy exclusion), or a lack of coverage in the first instance (i.e., a defense ‘implicat[ing] a coverage matter’)? In our view, a defense that the billed-for services were never rendered is more akin to the former. In this case, there was an actual accident and actual injuries. As the Appellate Division put it, ‘coverage legitimately came into existence’ (42 AD3d at 285), thus removing this fact pattern from the realm of cases where preclusion would create coverage where it never existed” (id. at 565 [some internal quotation marks omitted]).

The Court added that, while preclusion required the insurer to pay a no-fault claim that it might not have been obligated to honor if timely disclaimed, “the same can be said of any policy defense subject to preclusion” (id.).

Significantly, the Court of Appeals has also determined that the defense of lack of a valid assignment is precluded if not{**101 AD3d at 67} timely asserted in connection with the denial of a claim. In Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (9 NY3d at 312), the billing provider stated on its claim form that the patient/insured’s signature with respect to the assignment of the claim was “on file”; the insurer failed to request verification of this fact, and did not issue a denial of the claim on the ground of lack of a valid assignment (id. at 318). Noting the absence of any dispute as to policy coverage for the medical services rendered, the Court, with one Judge dissenting, held that the asserted defense “simply does not implicate a lack of coverage warranting exemption from the preclusion rule” (id. at 319). The majority of the Court observed:

“To conclude otherwise . . . frustrates a core objective of the no-fault regime—to provide a tightly timed process of claim, disputation and payment. Upon receipt of a no-fault claim, the regulations shift the burden to the carrier to obtain further verification or deny or pay the claim. When, as here, an insurer does neither, but instead waits to be sued for nonpayment, the carrier should bear the consequences of its nonaction. To allow an insurance company to later challenge a hospital’s standing as an assignee merely encourages the carrier to ignore the prescribed statutory scheme” (id. at 319-320 [internal quotation marks and citation omitted]).

The majority opinion in Hospital for Joint Diseases v Travelers recognized that the issue there was essentially one of “standing” (see also id. at 320-323 [Pigott, J., dissenting]). The insurer there contended that the medical provider did not obtain a valid assignment from the recipient of the medical services and, thus, lacked standing to sue. Here, similarly, an issue of standing is raised by the insurer’s defense. Although the parties do not dispute that the PC obtained an assignment on paper from Chadaevi, the insurer contends that the assignment was invalid to confer standing to sue upon the PC because, taking its claim forms at face value, the PC was not the treating provider. Pursuant to 11 NYCRR 65-3.11 (a), only the treating provider will have standing to sue to recover benefits upon an assignment of the claim to it by an insured applicant or patient. It is undisputed that, here, coverage exists for the claimed medical expenses and that the PC and the medical professionals listed as “independent contractors” on the claim forms are all licensed medical providers (see 11 NYCRR 65-3.16 [a] [12]). There is no {**101 AD3d at 68}fraud alleged. Rather, this is simply a case in which, if the information on the claim forms is taken as true, the party which commenced this lawsuit allegedly does not have standing to sue. We conclude, therefore, on the authority of Hospital for Joint Diseases v Travelers, that the independent contractor defense does not fall within the exception to the preclusion rule.

Here, in opposition to the insurer’s motion, in effect, for summary judgment, the PC argued that Hospital for Joint Diseases v Travelers required preclusion of the independent contractor [*8]defense. However, the Appellate Term rejected the PC’s argument and, citing Rockaway Blvd. Med. P.C. v Progressive Ins. (9 Misc 3d at 54), held that the defense was “nonprecludable” (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d at 72). In Rockaway, the Appellate Term held that

“[a] defense that a plaintiff in an assigned first-party no-fault action may not maintain the action because it is not a ‘provider’ within the meaning of the insurance regulations, and hence that no-fault benefits are not assignable to it, is nonwaivable and not subject to the preclusion rule (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854 [2003] [transportation charges are no longer assignable under the revised regulations effective April 5, 2002])” (9 Misc 3d at 54).

Subsequent to Rockaway, other Appellate Term decisions have cited it for the proposition that the independent contractor defense is nonwaivable or nonprecludable (see e.g. Gentle Care Acupuncture, P.C. v Raz Acupuncture, P.C., 25 Misc 3d 136[A], 2009 NY Slip Op 52274[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2009]; A.M. Med. Servs., P.C. v Travelers Ins. Co., 23 Misc 3d 145[A], 2009 NY Slip Op 51147[U] [2009]; Health & Endurance Med., P.C. v Liberty Mut. Ins. Co., 19 Misc 3d 137[A], 2008 NY Slip Op 50864[U] [2008]; M.G.M. Psychiatry Care P.C. v Utica Mut. Ins. Co., 12 Misc 3d 137[A], 2006 NY Slip Op 51286[U] [App Term, 2d Dept, 2d & 11th Jud Dists 2006]).

As noted, the Rockaway court looked to Matter of Medical Socy. of State of N.Y. v Serio (100 NY2d at 854) for guidance. However, Serio did not address the issue of preclusion. That case involved a constitutional challenge to the rulemaking authority of the Superintendent with respect to the promulgation of Regulation 68 (amending 11 NYCRR part 65), which became effective April 4, 2002 (id. at 862 n 2). The Court of Appeals noted that the new regulations, inter alia, “no longer {**101 AD3d at 69}permit the assignment to health care providers of benefits for non-health-related services (typically housekeeping and transportation expenses),” which “remain reimbursable, although nonassignable” (id. at 871 [citation omitted]). Similarly, here, the subject health care expenses are reimbursable but not assignable to any professional corporation that does not directly provide the services through its owners or employees. Thus, while the analogy taken from Serio may be relevant to the substantive issue of whether a professional corporation is entitled to recover no-fault benefits for services rendered by an independent contractor, it is not relevant to the distinct question of whether an insurer should be precluded from asserting the independent contractor defense due to its failure to issue a denial of claim on that ground.

Rockaway was decided in 2005, i.e., prior to the decision in Hospital for Joint Diseases v Travelers, which was decided by the Court of Appeals in 2007. Thus, the Rockaway court could not look to that decision for guidance. To the extent that Rockaway and its progeny in the Appellate Term stand for the proposition that the independent contractor defense falls within the exception to the preclusion rule, they should not be followed.

Our determination is consistent with the objective of the No-Fault Law “to provide prompt uncontested, first-party insurance benefits” and “a tightly timed process of claim, disputation and payment” (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d at 281, 285). Here, the insurer’s reason for denying the claim should have been apparent to it from the face of the claim form. The Court in Fair Price rejected the insurer’s contention that “a 30-day (plus potential tolling) window is generally too short a time frame in which to detect billing fraud,” holding that “any change [in the statutory time frame] is up to the Legislature” (Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d at 565). Even this argument is not available to the insurer here, since it would have taken no further research or effort on its part to simply read the claim form and disclaim coverage for the stated reason that the bill had not been submitted by the “provider” of medical services, as defined by the applicable regulation. While ignorance of the applicable law or regulations should not excuse an insurer’s inaction, we note that the Superintendent’s opinion that a PC cannot submit a bill for an independent contractor was issued on February 21, 2001, well before the subject claims were submitted by the PC to the insurer in July 2002 (see A.B. Med.{**101 AD3d at 70} Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 8 Misc 3d 132[A], 2005 NY Slip Op 51111[U] [2005] [noting subsequent, consistent informal opinions of the Superintendent dated February 5, 2002, and March 11, 2002]).

Moreover, had the insurer promptly issued a denial of claim based upon the [*9]representations made in the claim form, any alleged mistake in the claim form could have been addressed immediately, avoiding litigation. As the Appellate Term noted here, under appropriate circumstances, a provider which has submitted a claim form containing errors may make an application with written proof providing “clear and reasonable justification” for its failure to submit a proper claim within 45 days of rendering services (see 11 NYCRR 65-1.1; A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d at 73). We, like the Appellate Term, do not express an opinion whether such an application would have been successful here, but note only that this consideration is relevant to the practicality of requiring an insurer to deny a claim based on the independent contractor rule, or thereafter be precluded from raising it in litigation.

Finally, there is no merit to the insurer’s contention that, although the independent contractor defense is not strictly a “lack of coverage” defense, it should nevertheless be included within the narrow exception to the preclusion rule by analogy to State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]). In Mallela, the Court held that 11 NYCRR 65-3.16 (a) (12) specifically “excluded from the meaning of ‘basic economic loss’ payments made to unlicensed or fraudulently licensed providers, thus rendering them ineligible for reimbursement” (id. at 320). Mallela did not decide the preclusion issue but established a cause of action for insurers to recoup no-fault benefits previously paid to fraudulently incorporated entities, thus implicitly allowing the insurer to raise an issue which was not asserted in a denial of claim (see e.g. One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738 [2008]).

Contrary to the insurer’s contention, a defense based on the fraudulent licensure of providers is not analogous to the instant situation. No fraud is alleged here, and the basis for the insurer’s denial of the claims was evident from the face of the claim forms. At most, the fraudulent licensure defense is analogous to the situation opposite from the circumstances here, namely, where a PC fraudulently states on the claim form that it provided the medical services knowing that, in fact, the services were actually provided by independent contractors. We are{**101 AD3d at 71} not faced with this situation, and express no opinion with regard to it.

Accordingly, the insurer’s motion, in effect, for summary judgment should have been denied on the ground that the insurer is precluded from raising the independent contractor defense by virtue of its failure to assert it as a ground for denial of the claims on its denial of claim forms.

Triable Issue of Fact/Amendment of Claim Forms

In the alternative, the PC contends that it raised a triable issue of fact as to whether the treating providers here were actually employees of the PC with evidence that the Civil Court, in three unrelated actions to which the insurer was not a party, found that the treating providers in those cases were actually employees of the PC, notwithstanding that they were incorrectly identified on the claim forms as independent contractors. The Appellate Term held that this argument was “irrelevant” because the PC should not be allowed to correct the alleged mistakes on its claim forms in the midst of litigation, and set forth several cogent reasons why this practice would be inequitable to the insurer (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d at 72).

These issues have been rendered academic in light of our determination that the insurer is precluded from raising the independent contractor defense. Accordingly, we decline to address them. We also decline to exercise our discretion to search the record to determine whether the PC is entitled to summary judgment on its complaint in light of the PC’s concession that it does not seek this relief on appeal.

Accordingly, the order dated December 31, 2008, is reversed, on the law, the judgment of the Civil Court, Queens County, entered January 2, 2008, is reversed, the insurer’s motion, in effect, for summary judgment dismissing the complaint is denied, and the order of the{**101 AD3d at 72} Civil Court, Queens County, entered November 30, 2007, is modified accordingly.

Dickerson, Belen and Hall, JJ., concur.

Ordered that the order dated December 31, 2008, is reversed, on the law, with costs, the judgment of the Civil Court of the City of New York, Queens County, entered January 2, 2008, is reversed, the defendant’s motion, in effect, for summary judgment dismissing the complaint is denied, and the order of the Civil Court of the City of New York, Queens County, entered November 30, 2007, is modified accordingly.

Footnotes

Footnote *: The insurer did not assert the independent contractor defense as an affirmative defense in its answer. However, the PC did not oppose the insurer’s motion on this ground and, thus, we have no occasion to determine whether the insurer waived this affirmative defense by failing to plead it (see CPLR 3018 [b]; Love v Rockwell’s Intl. Enters., LLC, 83 AD3d 914, 915 [2011]; Butler v Catinella, 58 AD3d 145, 150 [2008]).

—[*1] Crafa & Sofield, P.C., Rockville Centre, N.Y. (Joseph R. Crafa of counsel), for appellant.

Gregory J. Cannata, New York, N.Y. (Alison Cannata Hendele of counsel), for respondents.

In an action to recover damages pursuant to the supplementary uninsured/underinsured motorist endorsement of an insurance policy, the defendant appeals from an order of the Supreme Court, Kings County (Bunyan, J.), dated March 10, 2011, which granted those branches of the plaintiffs’ motion which were, in effect, for summary judgment determining that the amount of supplementary uninsured/underinsured motorist coverage available to the plaintiffs pursuant to the subject insurance policy is $400,000 and to dismiss the third and fourth affirmative defenses pursuant to CPLR 3211, and denied its cross motion, in effect, for summary judgment determining that the amount of supplementary uninsured/underinsured motorist coverage available to the plaintiffs pursuant to the subject insurance policy is limited to $145,000.

Ordered that the order is reversed, on the law, with costs, those branches of the plaintiffs’ motion which were, in effect, for summary judgment determining that the amount of supplementary uninsured/underinsured motorist coverage available to the plaintiffs pursuant to the subject insurance policy is $400,000 and to dismiss the third and fourth affirmative defenses pursuant to CPLR 3211 are denied, and the defendant’s cross motion, in effect, for summary judgment determining that the amount of supplementary uninsured/underinsured motorist coverage available to the plaintiffs pursuant to the subject insurance policy is limited to $145,000 is granted.

On March 4, 2003, Rifka and Anton Goldenberg were killed when a vehicle operated by a drunk driver, Michael McGibbon, collided with their vehicle. The insurance policy covering McGibbon’s vehicle contained coverage limits of $50,000 per person and $100,000 per accident. The Goldenbergs’ automobile insurance policy (hereinafter the subject policy), issued by the defendant, Tri-State Consumer Insurance Company (hereinafter Tri-State), included a supplementary uninsured/underinsured motorist (hereinafter SUM) endorsement which contained a coverage limit of $250,000 per person and $500,000 per accident. The plaintiffs in this action, the Goldenbergs’ daughters, who are the administrators of their estates, commenced an action to recover damages from, among others, McGibbon’s estate, the owner of McGibbon’s vehicle, and a bar and a diner that had served McGibbon alcohol before the accident. The insurer of McGibbon’s vehicle agreed to pay [*2]the $100,000 maximum coverage limit of its policy in settlement of the claims against McGibbon’s estate and the owner of his vehicle. The bar and the diner (hereinafter together the Dram Shop defendants), and their insurers, agreed to pay a total of $255,000 in settlement of the “Dram Shop” claims asserted against them (hereinafter the Dram Shop recovery). Thus, the plaintiffs settled the prior action for a total of $355,000.

The plaintiffs submitted a claim to Tri-State for recovery under the SUM endorsement of the subject policy. Tri-State asserted that the amount available to the plaintiffs under the SUM endorsement was limited to $145,000 (the $500,000 coverage amount less the total amount of the $355,000 settlement in the prior action). Thereafter, the plaintiffs commenced this action against Tri-State seeking to recover damages pursuant to the SUM endorsement in the amount of $400,000. In the complaint, they alleged that the SUM endorsement’s $500,000 coverage limit could properly be reduced only by the $100,000 attributable to McGibbon’s policy, and not by the amount of the Dram Shop recovery. In its answer, the defendant alleged, under the third and fourth affirmative defenses, that the amount of SUM coverage available to the plaintiffs is reduced by the amount of the Dram Shop recovery. The plaintiffs moved, inter alia, in effect, for summary judgment determining that the amount of SUM coverage available to them pursuant to the subject policy is $400,000 and to dismiss the third and fourth affirmative defenses pursuant to CPLR 3211, and Tri-State cross-moved, in effect, for summary judgment determining that the amount of such coverage is limited to $145,000. The Supreme Court granted the aforementioned branches of the plaintiffs’ motion and denied Tri-State’s cross motion. Tri-State appeals, and we reverse.

The subject policy contained the standard SUM endorsement prescribed by the Superintendent of Insurance in Regulation No. 35-D (11 NYCRR 60-2.3 [c], [f]). Two conditions in the endorsement are directly at issue in this appeal. Condition 6 provides:

“6. Maximum SUM Payments. Regardless of the number of insureds, our maximum payment under this SUM endorsement shall be the difference between:

“(a) The SUM limits; and

“(b) The motor vehicle bodily injury liability insurance or bond payments received by the insured or the insured’s legal representative, from or on behalf of all persons that may be legally liable for the bodily injury sustained by the insured.

“The SUM limit shown on the Declarations for ‘Each Person’ is the amount of coverage for all damages due to bodily injury to one person. The SUM limit shown under ‘Each Accident’ is, subject to the limit for each person, the total amount of coverage for all damages due to bodily injury to two or more persons in the same accident.”

Condition 11 provides:

“11. Non-Duplication. This SUM coverage shall not duplicate any of the following:

“(a) Benefits payable under workers’ compensation or other similar laws;

“(b) Non-occupational disability benefits under article nine of the Workers’ Compensation Law or other similar law;

“(c) Any amounts recovered or recoverable pursuant to article fifty-[*3]one of the New York Insurance Law or any similar motor vehicle insurance payable without regard to fault;

“(d) Any valid or collectible motor vehicle medical payments insurance; or

“(e) Any amounts recovered as bodily injury damages from sources other than motor vehicle bodily injury liability insurance policies or bonds.”

SUM coverage in New York is a converse application of the golden rule; its purpose is “to provide the insured with the same level of protection he or she would provide to others were the insured a tortfeasor in a bodily injury accident” (Matter of Prudential Prop. & Cas. Co. v Szeli, 83 NY2d 681, 687 [1994]; see Matter of Allstate Ins. Co. v Rivera, 12 NY3d 602, 608 [2009]; Raffellini v State Farm Mut. Auto. Ins. Co., 9 NY3d 196, 204 [2007]; see generally Norman H. Dachs and Jonathan A. Dachs, SUM Insurance Dilemma Hits the Mainstream, NYLJ, Sept. 19, 2012 at 3, col 1). With this limited purpose, SUM coverage does not function as a stand-alone policy to fully compensate the insureds for their injuries (cf. Bauter v Hanover Ins. Co., 247 NJ Super 94, 96-97, 588 A2d 870, 872 [1991], cert denied 126 NJ 335, 598 A2d 893 [1991]). The conditions quoted above make this clear, as do other conditions not directly at issue in this case.

Here, the maximum SUM coverage of the subject policy was $500,000 per accident. The amount payable under that coverage was reduced, under Conditions 6 (a) and (b), by the $100,000 paid by McGibbon’s insurer, inasmuch as that amount constituted a “motor vehicle bodily injury liability insurance . . . payment[ ]” that the plaintiffs received (11 NYCRR 60-2.3 [f]). Further, the Dram Shop claims were settled for a total of $255,000. The Dram Shop recovery constitutes, under Condition 11 (e), an amount “recovered as bodily injury damages from sources other than motor vehicle bodily injury liability insurance policies or bonds.” Condition 11 does not allow duplicate recovery of such damages. Consequently, under the terms of the SUM endorsement, the plaintiffs’ receipt of the Dram Shop recovery reduces, by that same $255,000, the amount payable under the SUM endorsement. The plaintiffs are not penalized by this reduction, since they received the maximum amount for which they are covered under the SUM endorsement: $100,000 from McGibbon’s policy, $255,000 from or on behalf of the Dram Shop defendants, and $145,000 from Tri-State.

We reject the plaintiffs’ argument that 11 NYCRR subpart 60-2, which includes the nonduplication provision, is inconsistent with Insurance Law § 3420 (f) (2) (A). When the Legislature enacted the no-fault structure in 1977, its concern about duplicate payments was reflected in the law itself (see L 1977, ch 892, § 7; see also Mem of State Executive Department, 1977 McKinney’s Session Laws at 2448). The adoption by the Superintendent of Insurance of additional provisions regarding duplication furthers the Legislature’s goal, and is not inconsistent with it (cf. Raffellini v State Farm Mut. Auto. Ins. Co., 9 NY3d at 201-202).

Finally, as the plaintiffs point out, a claimant has the right to submit a SUM claim upon exhaustion of the full liability limits of just one tortfeasor (see e.g. S’Dao v National Grange Mut. Ins. Co., 87 NY2d 853 [1995]). However, that does not mean that a claimant’s ultimate entitlement to payment under the SUM endorsement may not be reduced or eliminated, depending on amounts recovered from additional tortfeasors (see Matter of Central Mut. Ins. Co. [Bemiss], 12 NY3d 648, 657-659 [2009]; Matter of Liberty Mut. Ins. Co. v Walker, 84 AD3d 960, 961 [2011]).

Accordingly, the Supreme Court should have denied those branches of the plaintiffs’ motion which were, in effect, for summary judgment determining that the amount of SUM coverage available to them pursuant to the subject insurance policy is $400,000 and to dismiss the third and fourth affirmative defenses pursuant to CPLR 3211, and should have granted the defendant’s cross motion, in effect, for summary judgment determining that the amount of such coverage is limited to $145,000. Florio, J.P., Balkin, Hall and Miller, JJ., concur.

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Law Offices of Moira Doherty, P.C., Bethpage, N.Y. (Janice Rosen and Maureen Knodel of counsel), for respondent.

In an action to recover no-fault benefits under a policy of automobile insurance, the plaintiff appeals from an order of the Supreme Court, Nassau County (Galasso, J.), entered March 7, 2012, which granted the defendant’s motion to vacate a clerk’s judgment of the same court entered December 1, 2011, which, upon the defendant’s default in appearing or answering the complaint, was in favor of the plaintiff and against the defendant in the sum of $38,645, and to compel the plaintiff to accept the defendant’s answer.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in granting the defendant’s motion to vacate the default judgment and to compel the plaintiff to accept its answer (see CPLR 3012 [d]). In light of the lack of any prejudice to the plaintiff resulting from the minimal delay in serving an answer to the complaint, the lack of willfulness on the part of the defendant, the existence of a potentially meritorious defense, and the public policy favoring the resolution of cases on the merits, the defendant’s default in appearing or answering the complaint was properly excused (see CPLR 2004; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Vinny Petulla Contr. Corp. v Ranieri, 94 AD3d 751, 752 [2012]; Zeccola & Selinger, LLC v Horowitz, 88 AD3d 992, 993 [2011]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-20 [1999]). Angiolillo, J.P., Balkin, Austin and Miller, JJ., concur.

—[*1] Brown & Kelly, LLP, Buffalo (Joseph M. Schnitter of counsel), for respondent-appellant.

Damon Morey LLP, Buffalo (Michael J. Willett of counsel), for petitioner-respondent.

Appeal from an order of the Supreme Court, Erie County (Patrick H. NeMoyer, J.), entered March 7, 2011 in a proceeding pursuant to CPLR article 75. The order, among other things, granted the petition to vacate an arbitration award.

It is hereby ordered that the order so appealed from is reversed on the law without costs, the petition is denied, the cross motion is granted and the arbitration award is confirmed.

Memorandum: Petitioner commenced this proceeding pursuant to CPLR 7511 (b) seeking vacatur of the arbitration award on the ground that arbitration was not available because under Insurance Law § 5105 (a) neither of the vehicles involved in the collision was “used principally for the transportation of persons or property for hire.” We conclude that Supreme Court erred in granting the petition to vacate the arbitration award and in denying the cross motion to confirm the award. Inasmuch as petitioner failed to apply for a stay of arbitration before arbitration, petitioner waived its contention that respondent’s claim for reimbursement of first-party benefits is not arbitrable under Insurance Law § 5105 (see Matter of Liberty Mut. Ins. Co. [Allstate Ins. Co.], 234 AD2d 901 [1996]). In view of that waiver, petitioner may not thereafter seek to vacate the arbitration award on the ground that the arbitration panel exceeded its power (see id.; Matter of Utica Mut. Ins. Co. v Incorporated Vil. of Floral Park, 262 AD2d 565, 566 [1999]; see also Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 583 [1977]).

Were we to reach the issue whether respondent’s vehicle was used principally for the transportation of persons or property for hire under Insurance Law § 5105, we would agree with our dissenting colleagues that the appropriate standard of review is whether the award was arbitrary and capricious (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]). However, despite acknowledging that we must apply a deferential standard of review, the dissent proceeds to conduct, with laser-like precision, a comprehensive legal analysis of the statutory phrase “vehicle used principally for the transportation of persons or [*2]property for hire” (§ 5105). In reaching a legal conclusion as to the appropriate definition to be assigned to the subject phrase, the dissent relies upon eight different definitions of or references to the phrase “vehicle for hire,” which the dissent concedes arise in “other [statutory or legal] contexts.” Notably, none of those definitions or references relied upon by the dissent was raised during arbitration or on appeal.

As the court recognized, petitioner has “contended from the outset that there is no legal or factual basis here for loss transfer pursuant to [Insurance Law § ] 5105,” and we disagree with the dissent’s conclusion that “at no point during the course of the proceedings in this matter did petitioner take the position that the claim was not arbitrable.” Indeed, in addition to labeling its defense as one for “lack of jurisdiction,” petitioner twice asserted in the arbitration that it was “not subject to the loss transfer procedure.” Thus, we have no difficulty concluding that petitioner took the position that the claim was not arbitrable. In concluding that the phrase assigned to petitioner’s defense (lack of jurisdiction) is not dispositive, our dissenting colleagues fail to offer any explanation of what was otherwise meant thereby. Moreover, the dissent’s reliance on Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund (47 AD3d 633 [2008]) is misplaced because, unlike here, the petitioner in Progressive “at no point during the course of the proceedings . . . [took] the position that the arbitration panel lacked jurisdiction or that the . . . claim was not arbitrable” (id. at 634 [emphasis added]). Thus, that case does not support the dissent’s position that petitioner, despite labeling its defense as one for “lack of jurisdiction,” did not assert that the claim was not arbitrable.

Both the dissent and the court disregard controlling precedent of this Court in determining that petitioner’s contention was not waived (see Liberty Mut. Ins. Co., 234 AD2d 901). The doctrine of stare decisis “recognizes that legal questions, once resolved, should not be reexamined every time they are presented” (Dufel v Green, 198 AD2d 640, 640 [1993], affd 84 NY2d 795 [1995]). ” ‘The doctrine . . . rests upon the principle that a court is an institution, not merely a collection of individuals, and that governing rules of law do not change merely because the personnel of the court changes’ ” (People v Taylor, 9 NY3d 129, 148 [2007], quoting People v Bing, 76 NY2d 331, 338 [1990], rearg denied 76 NY2d 890 [1990]). Stare decisis ” ‘is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process’ ” (id.; see People v Damiano, 87 NY2d 477, 488-489 [1996] [Simons, J., concurring]; Baden v Staples, 45 NY2d 889, 892 [1978]).

Here, this Court has previously held that, by failing to apply for a stay before arbitration, an insurer waives the contention that the claim is not arbitrable under Insurance Law § 5105 (Liberty Mut. Ins. Co., 234 AD2d 901). In the instant matter, the court acknowledged our decision in Liberty Mut. Ins. Co., but concluded that it was overruled by Motor Veh. Acc. Indem. Corp. (89 NY2d 214). That was error. Indeed, the Court of Appeals in Motor Veh. Acc. Indem. Corp. did not hold that insurers are precluded from obtaining judicial review of the threshold question of whether a claim was subject to loss-transfer arbitration under section 5105. Rather, the courts of this State have long recognized that a court has the power to resolve the threshold question whether a loss-transfer arbitration should be stayed under CPLR article 75 (see Matter of State Farm Mut. Auto Ins. Co. v Aetna Cas. & Sur. Co.132 AD2d 930, 931 [1987], affd 71 NY2d 1013 [1988]; City of Syracuse v Utica Mut. Ins. Co., 90 AD2d 979 [1982], affd 61 NY2d 691 [1984]; Utica Mut. Ins. Co., 262 AD2d 565; Liberty Mut. Ins. Co., 234 AD2d 901).

Motor Veh. Acc. Indem. Corp. (89 NY2d 214), also relied upon by the dissent as a basis for concluding that the award is arbitrary and capricious, involved an “erroneous application of the Statute of Limitations” by the arbitrator (id. at 224). In concluding that such an error of law was not arbitrary and capricious as a matter of law, the Court in Motor Veh. Acc. Indem. Corp. [*3]noted the varying interpretations of the limitations rule by the courts. Here, there is a paucity of decisions interpreting the phrase “for hire” in the Insurance Law § 5105 context, and our own decision on this point noted that the statute is “inartfully drafted” and does not limit the universe of vehicles embraced thereby to “taxis and buses, and livery vehicles” (State Farm Mut. Auto. Ins. Co., 132 AD2d at 931). Therefore, even assuming, arguendo, that we could reach the issue, we would conclude that, under the circumstances presented, it cannot be said that the arbitration panel’s award was arbitrary and capricious or was unsupported by any reasonable hypothesis (see Motor Veh. Acc. Indem. Corp., 89 NY2d at 224).

All concur except Peradotto and Sconiers, JJ., who dissent and vote to affirm in the following memorandum.

Peradotto and Sconiers, JJ. (dissenting).We respectfully dissent. Unlike the majority, we conclude that petitioner did not waive its contention that the vehicle owned by its insured and involved in the subject accident was not “used principally for the transportation of persons or property for hire” within the meaning of Insurance Law § 5105 (a). We further conclude that there is no evidentiary support or rational basis for the arbitration panel’s determination that the at-issue vehicle—a minivan owned by a nonprofit community residence for developmentally disabled individuals and used by its employees to transport the six residents of the group home—is a vehicle “for hire” under that section.

Petitioner’s insured, Rivershore, Inc. (Rivershore), is a private, nonprofit organization that provides residential and community support services to individuals with developmental disabilities. Rivershore operates several state-funded community residences for people with disabilities, including a residence on 17th Street in Niagara Falls. On May 11, 2009, Rivershore employee Thomas Beckhorn, a night program manager at the 17th Street residence, was on his way to pick up one of the residents from her mother’s home when he was involved in a motor vehicle accident with a vehicle owned by Mary D. Farmel and operated by Cheryl K. French. French sustained injuries in the accident. At the time of the accident, Beckhorn was operating a minivan owned by Rivershore and insured by petitioner. The Farmel vehicle was insured by respondent. After paying first-party personal injury protection (first-party) benefits to and on behalf of French, respondent filed an application for inter-company arbitration, seeking reimbursement of those benefits from petitioner pursuant to the loss-transfer provisions of Insurance Law § 5105. In a contentions sheet submitted to the arbitration panel, petitioner contended that it was “not subject to the loss[-]transfer procedure because not one of the vehicles in the accident weighed more than 6,500 lbs. and/or neither vehicle was used principally for transportation of persons or property for hire.” In an amended contentions sheet, petitioner specifically contended that the minivan operated by Beckhorn weighed between 5,001 and 6,000 pounds, and that it was not used for the transportation of persons or property for hire. Rather, petitioner asserted that the minivan “was used in the course of providing general services to a disabled person, services that are regularly provided by Rivershore[ ] . . . to its developmentally disabled residents.”

The arbitration panel determined that the Rivershore minivan “meet[s] the definition of a livery for this loss” and awarded respondent the full amount of the first-party benefits respondent had paid to French. Petitioner then commenced this proceeding seeking to vacate the arbitration award pursuant to CPLR 7511 (b) on the ground that the award was without evidentiary support or rational basis and thus was arbitrary and capricious insofar as the arbitration panel determined that the minivan was a vehicle for hire within the meaning of Insurance Law § 5105. Respondent cross-moved to confirm the award. Supreme Court granted the petition, denied the cross motion, and vacated the arbitration award on the ground that the arbitrators “acted irrationally and without an evidentiary basis” in concluding that the minivan was “used principally for the transportation of persons or property for hire” (§ 5105). We would affirm. [*4]

As relevant here, Insurance Law § 5105 (a) provides that “[a]ny insurer liable for the payment of first[-]party benefits . . . which another insurer would otherwise be obligated to pay . . . but for the provisions of th[e No Fault Statute]” has a “right to recover [those benefits] . . . only if at least one of the motor vehicles involved . . . [weighs] more than [6,500] pounds unloaded or is . . . used principally for the transportation of persons or property for hire” (emphasis added). Thus, the right to recovery under that statute’s loss-transfer provision is limited to accidents in which one of the involved vehicles (1) exceeds 6,500 pounds, or (2) transports persons or property “for hire.” The Legislature amended section 5105 (a) in 1977 to add those alternative conditions with the intention of “limit[ing] the right of insurance carriers to recover first-party payments” (Matter of State Farm Mut. Auto. Ins. Co. v Aetna Cas. & Sur. Co., 132 AD2d 930, 931 [1987], affd 71 NY2d 1013 [1988]; see Matter of Progressive Northeastern Ins. Co. [New York State Ins. Fund], 56 AD3d 1111, 1112 [2008], lv denied 12 NY3d 713 [2009]). Pursuant to section 5105 (b), “mandatory arbitration is the sole remedy regarding disputes between insurers over responsibility for payment of first-party benefits” (State Farm Mut. Auto. Ins. Co. v Nationwide Mut. Ins. Co., 150 AD2d 976, 977 [1989]; see also NY St Ins Dept 2005 Circular Letter No. 10, RE: PIP [No-fault] inter-company loss transfer procedures [“If there is a dispute with respect to a claim arising pursuant to [s]ection 5105, the sole remedy of any insurer or compensation provider is via the submission of the controversy to a mandatory arbitration program”]).

Contrary to the contention of respondent and the conclusion of the majority, we conclude that at no point during the course of the proceedings in this matter did petitioner assert that the claim was not arbitrable, i.e., that the arbitrators lacked the authority to adjudicate the claim (see Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d 633, 634 [2008]; cf. Matter of Liberty Mut. Ins. Co. [Allstate Ins. Co.], 234 AD2d 901 [1996]). During arbitration, petitioner did not object to proceeding in the arbitral forum or contend that the claim was not subject to arbitration, and does not so contend on appeal. Rather, petitioner asserted on the merits that respondent could not recover pursuant to the loss-transfer provisions of Insurance Law § 5105 because neither vehicle involved in the accident weighed more than 6,500 pounds or was used principally for the transportation of persons or property for hire. Thus, petitioner’s “participation in the arbitration proceeding without first moving for a stay of arbitration did not constitute a waiver of its contention that the [minivan] was not . . . [a vehicle for hire] within the meaning of . . . [section] 5105” (Progressive Cas. Ins. Co., 47 AD3d at 634). The fact that petitioner’s contentions sheet labeled its defense as one for “lack of jurisdiction” is not dispositive of the issue whether petitioner asserted that the claim was not arbitrable. The substance of petitioner’s contention, i.e., that the minivan did not qualify as a vehicle for hire, “is a condition precedent to ultimate recovery [under section 5105], not a condition precedent to ‘access to the arbitral forum‘ ” (id., quoting Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1, 7 [1980] [emphasis added]; see Progressive Northeastern Ins. Co., 56 AD3d at 1112). In light of the broad scope of the mandatory arbitration provision in Insurance Law § 5105 (b), we conclude that petitioner properly submitted the issue whether the minivan was a “vehicle . . . for hire” to the arbitration panel for determination (§ 5105 [a]; see Progressive Cas. Ins. Co., 47 AD3d at 634) and, arguably, had no choice but to do so (see § 5105 [b]; Paxton Natl. Ins. Co. v Merchants Mut. Ins. Co., 74 AD2d 715, 716 [1980], affd 53 NY2d 646 [1981] [“Arbitration provides the sole remedy in loss transfer between insurers and the arbitration panel is the proper forum . . . for the determination of all questions of law and fact which may arise in connection with the remedy that respondent seeks”]).

With respect to the merits, “[w]here, as here, the parties are obligated by statutory mandate to submit their dispute to arbitration (see Insurance Law § 5105 [b]), the arbitrator’s determination is subject to ‘closer judicial scrutiny’ than with voluntary arbitration” (Progressive Northeastern Ins. Co., 56 AD3d at 1113, quoting Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; see Matter of Furstenberg [Aetna Cas. & Sur. Co.—Allstate Ins. Co.], 49 NY2d 757, 758 [1980]). “To be upheld, an award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious” (Motor Veh. Acc. Indemn. Corp., 89 NY2d at 223). Further, “article 75 review questions whether the decision was rational or had a plausible basis” (Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 211 [1981]; see Progressive Cas. Ins. Co., 47 AD3d at 634).

It was respondent’s burden, as the party seeking reimbursement, to establish its right to recovery under Insurance Law § 5105 (a) (see Progressive Northeastern Ins. Co., 56 AD3d at 1112; see also Matter of Hanover Ins. Co. v State Farm Mut. Auto. Ins. Co., 226 AD2d 533, 534 [1996]). Here, we conclude not only that respondent failed to meet its burden, but we also conclude that there is no evidentiary support or rational basis for the arbitrators’ determination that the minivan was principally used to transport persons “for hire,” a condition precedent to respondent’s entitlement to reimbursement under section 5105 (a) (see Progressive Northeastern Ins. Co., 56 AD3d at 1113). As this Court held in State Farm Mut. Auto Ins. Co. (132 AD2d at 931), “the words ‘for hire’ modify the word ‘vehicle’ and . . . the statute covers only those vehicles hired to transport people, such as taxis and buses, and livery vehicles hired to transport property” (emphasis added). We agree with the court that, under the circumstances of this case, “the Rivershore minivan cannot be categorized as or even likened to a taxi or bus.”

The term “vehicle for hire” is commonly understood and defined in other contexts as a vehicle held out to the public for the provision of transportation services in exchange for a fee (see generally Penal Law § 60.07 [2] [b] [defining ” ‘for-hire vehicle’ ” as “a vehicle designed to carry not more than five passengers for compensation and such vehicle is a taxicab, . . . a livery, . . . or a ‘black car’ “]; Vehicle and Traffic Law § 121-e [defining “livery” as “(e)very motor vehicle, other than a taxicab or a bus, used in the business of transporting passengers for compensation”]; Vehicle and Traffic Law § 401 [5-a] [a] [ii] [defining “motor vehicle operated for hire” as “mean(ing) and includ(ing) a taxicab, livery, coach, limousine or tow truck”]; Ops Gen Counsel NY Ins Dept No. 01-01-11 [Jan. 2001] [“The phrase ‘a motor vehicle used principally for the transportation of persons or property for hire’ refers to vehicles hired to transport people and livery vehicles hired to transport property”]). Such vehicles are typically operated by drivers who are required to have a particular certification or license, and are subject to specialized licensing, insurance, safety, and other requirements (see e.g. Vehicle and Traffic Law § 148-a [defining a “taxicab” as “[e]very motor vehicle, other than a bus, used in the business of transporting passengers for compensation, and operated in such business under a license or permit issued by a local authority”]; Vehicle and Traffic Law § 370 [1] [requiring filing of indemnity bond or insurance policy by every person or entity “engaged in the business of carrying or transporting passengers for hire in any motor vehicle”]; Vehicle and Traffic Law § 375 [23] [“Every motor vehicle operated for hire upon the public highways of this state shall be equipped with handles or other devices which shall permit the door or doors to the passenger compartment to be readily opened from the interior of the vehicle”]; see generally Vehicle and Traffic Law § 498 [governing interjurisdictional pre-arranged for-hire vehicle operations]).

The evidence before the arbitration panel in this case consisted of the deposition testimony of Beckhorn, the driver of the minivan, and material from Rivershore’s website. Such evidence establishes that Rivershore is not in the business of transporting members of the public for compensation, and that the Rivershore minivan was not used for that purpose. Rivershore’s website states that it supports 12 state-funded community residences for individuals with developmental disabilities, and “serves many more people in their private homes throughout Niagara County.” In addition to its residential services, Rivershore “provides life planning services, clinical services, and support with employment and volunteer pursuits.” Beckhorn testified that he worked at the 17th Street community residence as a nighttime program manager, and that, at the time of the accident, he was driving to pick up one of the residents from [*5]her mother’s house. Beckhorn testified that he was not specifically hired to pick up the resident; rather, transporting residents of the group home was only one of his many duties as a program manager. Beckhorn did not charge a fare, and he was not paid per trip. Further, the record establishes that Beckhorn possessed a “regular” driver’s license and that the minivan bore passenger plates rather than livery or commercial license plates.

In determining that the minivan constituted a vehicle for hire under Insurance Law § 5105 (a), the arbitrators relied upon Beckhorn’s testimony that he “was going to pick up one of Rivershore’s customers,” as well as materials from Rivershore’s website, which, according to the arbitrators, “proves that [Rivershore] offers a series of services for their customers . . . [including] transportation to appointments.” Beckhorn’s testimony, however, establishes that he was on his way to pick up not simply a “customer[ ]” of Rivershore; rather, he was picking up a resident of the 17th Street community residence in a minivan used by Rivershore staff for group home purposes. With respect to Rivershore’s website, none of the materials submitted to the arbitration panel refer to Rivershore’s provision of transportation services, let alone the transportation of customers “for hire.” The portion of the website relied upon by the arbitrators applies to Rivershore’s individualized service environment program, which is “designed for people who live in their own apartment or house, or in a family dwelling” (emphasis added), not for individuals who live in a community residence. In any event, even if that program was involved here, the website does not state that Rivershore provides transportation services to program participants. Rather, it states that “[h]ighly trained staff will visit [participants’] home[s] and provide supports to help [them] achieve [their] goals, which are specific and individualized to [each participant]. These supports include assisting [participants] in completing all necessary daily activities, assisting [them] with attending any needed medical appointments, and gaining further independence, productivity and inclusion in [their] community” (emphasis added).

In sum, the record establishes that the Rivershore minivan was not held out to the community as a vehicle transporting people “for hire.” To the contrary, the minivan was assigned to the 17th Street community residence for the exclusive purpose of assisting the six individuals who live there with activities of daily living, i.e., shopping, attending events, family visits, etc. The driver of the minivan was not hired for the purpose of providing transportation and did not possess a specialized license to provide transportation services; rather, he was hired to provide residential services to the residents of the group home that, from time to time, included driving them to various activities. We therefore conclude that the arbitration panel’s determination that the at-issue minivan was “used principally for the transportation of persons . . . for hire” lacks evidentiary support or a rational basis, and thus that the court properly vacated the arbitration award on that ground (Insurance Law § 5105 [a]; see generally Progressive Northeastern Ins. Co., 56 AD3d at 1113-1114; Progressive Cas. Ins. Co., 47 AD3d at 634). Present—Centra, J.P., Peradotto, Carni, Lindley and Sconiers, JJ.

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Lawrence R. Miles, Long Island City, N.Y., for respondent.

In an action to recover no-fault benefits under an insurance contract, the plaintiff appeals, as limited by its notice of appeal and brief, from so much of an order of the Supreme Court, Nassau County (Sher, J.), entered September 1, 2011, as denied its motion for summary judgment on the complaint.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the plaintiff’s motion for summary judgment on the complaint is granted.

The plaintiff made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence that the prescribed statutory billing form had been mailed to and received by the defendant insurer, which failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; NYU-Hosp. for Joint Diseases v American Intl. Group, Inc., 89 AD3d 702, 703 [2011]; Mount Sinai Hosp. v Country Wide Ins. Co., 85 AD3d 1136, 1137 [2011]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1045-1046 [2009]).

In opposition to the plaintiff’s motion, the defendant failed to raise a triable issue of fact. A presumption of receipt was created by the certified mail receipt and the signed return receipt card, such that the defendant’s mere denial of receipt was insufficient to raise a triable issue of fact (see New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729, 730-731 [2007]; Westchester Med. Ctr. v Liberty Mut. Ins. Co., 40 AD3d 981, 982-983 [2007]). Further, the defendant’s failure to respond to the no-fault billing within the requisite 30-day period precluded it from raising the defenses that it was not provided with timely notice of the underlying motor vehicle accident or proof of claim (see Bayside Rehab & Physical Therapy, P.C. v GEICO Ins. Co., 24 Misc 3d 542, 545 [2009]; Rockman v Clarendon Natl. Ins. Co., 21 Misc 3d 1118[A], 2008 NY Slip Op 52093[U] [Civ Ct, Richmond County 2008]; Vincent Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co., 21 Misc 3d 142[A], 2008 NY Slip Op 52442[U] [App Term, 2d Dept 2008]). Finally, although the defense of lack of coverage is not precluded by the defendant’s failure to pay or deny the subject no-fault claim within the requisite 30-day period (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d [*2]312, 318 [2007]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]), here, the defendant’s submissions were insufficient to raise triable issues of fact with respect to a lack of coverage defense (see Mercury Cas. Co. v Encare, Inc., 90 AD3d 475 [2011]; D.S. Chiropractic, P.C. v Country-Wide Ins. Co., 24 Misc 3d 138[A], 2009 NY Slip Op 51584[U] [App Term, 2d Dept 2009]). Accordingly, the Supreme Court should have granted the plaintiff’s motion for summary judgment on the complaint. Rivera, J.P., Belen, Sgroi and Miller, JJ., concur. [Prior Case History: 2011 NY Slip Op 32398(U).]

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

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

In an action to recover no-fault medical payments under a policy of automobile insurance, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Marber, J.), entered September 12, 2011, as denied its motion for summary judgment on the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff demonstrated its prima facie entitlement to judgment as a matter of law on its complaint to recover no-fault payments, by submitting evidence that the prescribed statutory billing form had been mailed and received by the defendant insurer, which failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.5; NYU-Hosp. for Joint Diseases v American Intl. Group, Inc., 89 AD3d 702 [2011]; Mount Sinai Hosp. v Country Wide Ins. Co., 85 AD3d 1136 [2011]; Mount Sinai Hosp. v Government Empls. Ins. Co., 85 AD3d 1135 [2011]; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019 [2007]). In opposition to the motion, however, the defendant established that it had made a timely request for additional verification and that it timely denied the claim within 30 days of receipt of the requested information (see 11 NYCRR 65-3.8 [a] [1]; 65-3.5 [b]; 65-3.6 [b]; Westchester Med. Ctr. v American Tr. Ins. Co., 60 AD3d 848, 849 [2009]; New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]; New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512, 513 [2006]; see generally Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]).

The parties’ remaining contentions are without merit.

Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment on the complaint. Skelos, J.P., Dillon, Eng and Austin, JJ., concur.

—[*1] Carman, Callahan & Ingham, LLP, Farmingdale, N.Y. (Joseph A. Niemczyk of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y., for respondent.

In an action to recover no-fault medical payments under certain policies of automobile insurance, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Brandveen, J.), entered May 19, 2010, as, upon reargument, vacated the determination in an order of the same court dated August 19, 2009, denying the plaintiff’s motion for summary judgment on the complaint, and thereupon granted the plaintiff’s motion for summary judgment on the complaint.

Ordered that the order entered May 19, 2010, is modified, on the law, by deleting the provisions thereof, upon reargument, vacating the determination in the order dated August 19, 2009, denying those branches of the plaintiff’s motion which were for summary judgment on the first and third causes of action, and thereupon granting those branches of the motion, and substituting therefor a provision, upon reargument, adhering to the determination in the order dated August 19, 2009, denying those branches of the motion; as so modified, the order entered May 19, 2010, is affirmed insofar as appealed from, without costs or disbursements.

In an action to recover no-fault benefits, a plaintiff makes a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed to and received by the relevant insurance carrier, and that payment of no-fault benefits was overdue (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019 [2007]). No-fault benefits are overdue if not paid within 30 days after the insurer receives proof of claims, including verification of all relevant information requested (see 11 NYCRR 65-3.5, 65-3.8 [a]; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019 [2007]).

With respect to the first cause of action, in which the plaintiff sought benefits as assignee of Gregoria Young, the plaintiff made a prima facie showing that it had mailed the prescribed statutory billing form to the defendant, and did not receive payment within the requisite 30-day period. In opposition to that showing, however, the defendant insurer submitted proof that it timely issued a denial of this claim. Inasmuch as the plaintiff sought summary judgment only on the basis that the defendant failed to timely pay or deny the claim, the Supreme Court, upon [*2]reargument, should have adhered to its prior determination denying summary judgment to the plaintiff on this cause of action without regard to the merits of the defendant’s denial of the claim (see Lenox Hill Hosp. v Government Empls. Ins. Co., 89 AD3d 905 [2d Dept 2011]; Westchester Med. Ctr. v Clarendon Natl. Ins. Co., 57 AD3d 659, 659-660 [2008]; see generally Stukas v Streiter, 83 AD3d 18, 24 [2011]).

With respect to the second cause of action, in which the plaintiff sought benefits as assignee of Loicyra Bulado, also known as Loicyra Almeda, the plaintiff offered proof that it had mailed the prescribed statutory billing form and did not receive payment therefor within 30 days after complying with the defendant’s verification requests (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). In opposition thereto, the defendant failed to raise a triable issue of fact. Accordingly, upon reargument, the plaintiff was properly awarded summary judgment on the second cause of action (see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

With respect to the third cause of action, in which the plaintiff sought benefits as assignee of Anthony Prunella, the plaintiff submitted proof that it did not receive payment of its claim within 30 days after submission thereof to the defendant. However, in opposition thereto, the defendant established that it timely requested verification of this claim, and that it paid the claim within 30 days after receipt of the requested verification (see 11 NYCRR 65-3.5 [b]; see also New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019 [2007]; Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889 [2007]). Accordingly, upon reargument, the Supreme Court should have adhered to its prior determination denying that branch of the plaintiff’s motion which was for summary judgment on the third cause of action. Prudenti, P.J., Skelos, Balkin and Sgroi, JJ., concur.

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

McDonnell & Adels, PLLC, Garden City, N.Y. (Rivkin Radler LLP [Evan H. Krinick, Cheryl F. Korman, Barry I. Levy, and Stuart M. Bodoff], of counsel), for respondent.

In an action, inter alia, for a judgment declaring that the plaintiff has no obligation to pay no-fault claims submitted to it by the defendants Ava Acupuncture, P.C., Crossbay Acupuncture, P.C., Ditmas Acupuncture, P.C., Downtown Acupuncture, P.C., East Acupuncture, P.C., Empire Acupuncture, P.C., First Help Acupuncture, P.C., Great Wall Acupuncture, P.C., Lexington Acupuncture, P.C., Madison Acupuncture, P.C., Midborough Acupuncture, P.C., Midwood Acupuncture, P.C., New Era Acupuncture, P.C., N.Y. First Acupuncture, P.C., North Acupuncture, P.C., and VA Accutherapy Acupuncture, P.C., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (McCarty III, J.), entered September 3, 2010, as denied those branches of their motion which were pursuant to CPLR 3211 (a) (7) to dismiss the first and second causes of action for failure to state a cause of action.

Ordered that the order is affirmed insofar as appealed from, with costs.

The plaintiff commenced this action seeking, among other things, a judgment declaring that it had no obligation to pay no-fault claims submitted to it by the defendants Ava Acupuncture, P.C., Crossbay Acupuncture, P.C., Ditmas Acupuncture, P.C., Downtown Acupuncture, P.C., East Acupuncture, P.C., Empire Acupuncture, P.C., First Help Acupuncture, P.C., Great Wall Acupuncture, P.C., Lexington Acupuncture, P.C., Madison Acupuncture, P.C., Midborough Acupuncture, P.C., Midwood Acupuncture, P.C., New Era Acupuncture, P.C., N.Y. First Acupuncture, P.C., North Acupuncture, P.C., and VA Accutherapy Acupuncture, P.C. (hereinafter collectively the professional corporation defendants). The first cause of action sought a judgment declaring that the professional corporation defendants were unlawfully incorporated and, thus, ineligible to collect or recover no-fault benefits. The second cause of action sought a judgment declaring that the services provided by the professional corporation defendants were performed by independent contractors or other nonemployees, and that the professional corporations were, therefore, not entitled to collect or recover no-fault benefits.

The professional corporation defendants, along with the defendants Valentina Anikeyeva and Andrey Anikeyev (hereinafter collectively the defendants), moved, among other things, pursuant to CPLR 3211 (a) (7) to dismiss the first and second causes of action for failure to [*2]state a cause of action. In an order entered September 3, 2010, the Supreme Court, inter alia, denied those branches of the defendants’ motion. We affirm the order insofar as appealed from.

“In determining a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must afford the pleading a liberal construction, accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory” (Integrated Constr. Servs., Inc. v Scottsdale Ins. Co., 82 AD3d 1160, 1162 [2011] [internal quotation marks omitted]).

“A motion to dismiss a declaratory judgment action prior to the service of an answer presents for consideration only the issue of whether a cause of action for declaratory relief is set forth, not the question of whether the plaintiff is entitled to a favorable declaration” (Staver Co. v Skrobisch, 144 AD2d 449, 450 [1988]; see Rockland Light & Power Co. v City of New York, 289 NY 45, 51 [1942]; Matter of Tilcon N.Y., Inc. v Town of Poughkeepsie, 87 AD3d 1148, 1150 [2011]; Law Research Serv. v Honeywell, Inc., 31 AD2d 900, 901 [1969]; see also 5-3001 Weinstein-Korn-Miller, NY Civ Prac CPLR ¶ 3001.13).

Accordingly, where a cause of action is sufficient to invoke the court’s power to “render a declaratory judgment . . . as to the rights and other legal relations of the parties to a justiciable controversy” (CPLR 3001; see 3017 [b]), a motion to dismiss that cause of action should be denied (see St. Lawrence Univ. v Trustees of Theol. School of St. Lawrence Univ., 20 NY2d 317, 325 [1967]; Rockland Light & Power Co. v City of New York, 289 NY at 51; Tilcon N.Y., Inc. v Town of Poughkeepsie, 87 AD3d at 1150; Staver Co. v Skrobisch, 144 AD2d at 450; Ackert v Union Pac. R. R. Co., 4 AD2d 819, 821 [1957]; see also 5-3001 Weinstein-Korn-Miller, NY Civ Prac ¶ 3001.13).

Here, contrary to the defendants’ contention, the allegations in the first and second causes of action presented justiciable controversies sufficient to invoke the Supreme Court’s power to render a declaratory judgment (see CPLR 3001; Waldman v 853 St. Nicholas Realty Corp., 64 AD3d 585, 587 [2009]; cf. State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 321 [2005]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738, 740 [2008]; A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 70, 71 [2008]).

The defendants’ remaining contentions are without merit.

Accordingly, the Supreme Court properly denied those branches of the defendants’ motion which were to dismiss the first and second causes of action pursuant to CPLR 3211 (a) (7) for failure to state a cause of action. Mastro, J.P., Dillon, Cohen and Miller, JJ., concur.

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Teresa M. Spina, Woodbury, N.Y. (Jeanne M. Ortega and P. Stephanie Estevez of counsel), for respondent.

In an action to recover payment of no fault benefits under a policy of automobile insurance, the plaintiff Lenox Hill Hospital, as assignee of Hector Jamie Robles, appeals from an order of the Supreme Court, Nassau County (Mahon, J.), entered April 21, 2011, which denied its motion for summary judgment on the first cause of action.

Ordered that the order is affirmed, with costs.

Given the limited nature of the plaintiff’s motion for summary judgment, which established the plaintiff’s prima facie entitlement to judgment as a matter of law solely on the ground that the defendant did not pay or deny the subject claim within 30 days (see 11 NYCRR 65-3.8 [c]), the defendant’s only burden in opposition to the motion was to raise a triable issue of fact regarding its timely payment or denial of the claim (see e.g. Westchester Med. Ctr. v Clarendon Natl. Ins. Co., 57 AD3d 659, 659-660 [2008]; see generally Stukas v Streiter, 83 AD3d 18, 24 [2011]). The defendant succeeded in raising such an issue of fact by submitting evidence that it sent the plaintiff a denial of claim form within the 30-day time limit. Accordingly, the motion was properly denied without regard to the plaintiff’s additional contention, improperly raised for the first time in its reply papers on the motion (see Djoganopoulos v Polkes, 67 AD3d 726, 727 [2009]; Crummell v Avis Rent A Car Sys., Inc., 62 AD3d 825, 826 [2009]), that the medical reports upon which the defendant relied to establish the merits of its denial of the claim were not in proper evidentiary form. Mastro, J.P., Chambers, Sgroi and Miller, JJ., concur.