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

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

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

Ordered that the order is affirmed, with costs.

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

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

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

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

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

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

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

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

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

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

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

” ‘[A] properly executed affidavit of service raises a presumption that a proper mailing occurred, and a mere denial of receipt is not enough to rebut this presumption’ ” (Matter of Ariel Servs., Inc. v New York City Envtl. Control Bd., 89 AD3d 415, 415 [1st Dept 2011]). “The presumption may be created by either proof of actual mailing or proof of a standard office practice or procedure designed to ensure that items are properly addressed and mailed” (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679, 680 [2d Dept 2001]).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[*1]

Second Department, April 10, 2013

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

APPEARANCES OF COUNSEL

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

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

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

Austin, J.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Footnotes

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

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

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

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

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

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

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

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

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

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

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

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

Footnotes

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

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

—[*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]).