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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The defendants’ remaining contentions are without merit.

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

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

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

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

Ordered that the order is affirmed, with costs.

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

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

Economou & Economou, LLP, Syosset, N.Y. (Ralph C. Caio of counsel), for respondent.

In an action pursuant to Insurance Law § 5106 (c) for a de novo determination of a claim for no-fault insurance benefits, the plaintiff appeals from an order of the Supreme Court, Kings County (Schack, J.), dated June 19, 2010, which denied its motion for summary judgment on the complaint and granted the defendant’s cross motion for summary judgment dismissing the complaint and on his counterclaims, and to confirm the award of a master arbitrator dated December 31, 2008.

Ordered that the order is reversed, on the law, with costs, that branch of the defendant’s cross motion which was to confirm the award of the master arbitrator is denied as academic, and the matter is remitted to the Supreme Court, Kings County, for a consideration of the merits of the plaintiff’s motion for summary judgment on the complaint and those branches of the defendant’s cross motion which were for summary judgment dismissing the complaint and on his counterclaims, and a new determination thereafter of the motion and those branches of the cross motion.

The plaintiff was entitled to commence this action to compel the de novo adjudication of the insurance dispute at issue since a master arbitrator’s award in favor of the defendant exceeded the statutory threshold sum of $5,000 (see Insurance Law § 5106 [c]; Matter of Greenberg [Ryder Truck Rental], 70 NY2d 573, 576-577 [1987]).

The Supreme Court, inter alia, denied the plaintiff’s motion for summary judgment on the complaint and granted those branches of the defendant’s cross motion which were for summary judgment dismissing the complaint and on his counterclaims, upon concluding that an award of a master arbitrator dated December 31, 2008, made pursuant to an arbitration proceeding instituted pursuant to Insurance Law § 5106 (b), was not arbitrary and capricious.

The Supreme Court erred in denying the plaintiff’s motion for summary judgment on the complaint solely on the basis that the award of the master arbitrator was not arbitrary and capricious. The plaintiff did not seek to vacate the award of the master arbitrator, and, once the [*2]plaintiff properly invoked its right to de novo review, the issue of whether the award was arbitrary and capricious was rendered academic. For the same reason, the Supreme Court also erred in granting the defendant’s cross motion to confirm the award of the master arbitrator and for summary judgment dismissing the complaint and on his counterclaims, based on the conclusion that the award was not arbitrary and capricious (see Progressive Ins. Co. v Strough, 55 AD3d 1402 [2008]; Matter of Capuano v Allstate Ins. Co., 122 AD2d 138 [1986]; see also Matter of Gersten v American Tr. Ins. Co., 161 Misc 2d 57 [1994]).

Since the Supreme Court did not consider the merits of the plaintiff’s motion or those branches of the defendant’s cross motion which were for summary judgment dismissing the complaint and on his counterclaims, the matter must be remitted to the Supreme Court, Kings County, for a consideration of the merits of the motion and those branches of the cross motion, and a new determination thereafter (see Hunter Sports Shooting Grounds, Inc. v Foley, 73 AD3d 702, 705 [2010]).

In light of our determination, we need not reach the plaintiff’s remaining contentions. Rivera, J.P., Florio, Austin and Sgroi, JJ., concur.

—[*1] McDonnell & Adels, PLLC, Garden City, N.Y. (Anita Nissan Yehuda of counsel), for appellant.

In an action for a judgment declaring that the plaintiff is not obligated to pay no-fault insurance claims submitted by the defendants, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Battaglia, J.), dated November 25, 2009, as, sua sponte, severed the action with respect to certain defendants and denied those branches of the plaintiff’s motion which were pursuant to CPLR 3211 (a) (3) and (7) to dismiss the defendants’ counterclaims, with leave to renew after joinder of issue on an amended complaint.

Ordered that on the Court’s own motion, the appeal from so much of the order as, sua sponte, severed the action with respect to certain defendants is deemed an application for leave to appeal from that portion of the order, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,

Ordered that the order is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the provision thereof severing the action with respect to certain defendants, and (2) by deleting the provision thereof denying that branch of the plaintiff’s motion which was pursuant to CPLR 3211 (a) (7) to dismiss the defendants’ counterclaims, with leave to renew after joinder of issue on an amended complaint, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from; and it is further,

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

The plaintiff insurance company issues automobile insurance policies in New York State which include coverage under the “no-fault” insurance law (see Insurance Law § 5101 et seq.). The plaintiff commenced this action against John McGee (hereinafter Dr. McGee), a licensed physician, and 12 professional medical service corporations owned and operated by Dr. McGee (hereinafter collectively the PCs), alleging that the PCs were fraudulently incorporated in Dr. McGee’s name when they were actually owned, operated, and controlled by unlicensed persons and their management companies in violation of applicable statutes and regulations. The plaintiff seeks a judgment declaring that it is not obligated to pay outstanding and future no-fault insurance claims submitted by the PCs on the primary theory that they were fraudulently incorporated in Dr. McGee’s name to circumvent New York law prohibiting nonphysicians from sharing ownership in medical [*2]service corporations. The plaintiff also seeks declaratory relief on the alternate theories that the PCs failed to provide requested verification of their eligibility to receive no-fault benefits, failed to attend requested examinations under oath in various actions and arbitration proceedings initiated by them to recover no-fault benefits, and submitted bills seeking payment of no-fault benefits for services that were not provided.

Shortly after the defendants joined issue by serving an answer with counterclaims, the plaintiff moved, inter alia, pursuant to CPLR 3211 (a) (3) and (7) to dismiss the counterclaims. On the return date of the motion, the Supreme Court, sua sponte, raised the issue of severance as to the relief sought against each of the 12 PCs and, at the court’s request, the parties submitted supplemental memoranda on the issue. In the order appealed from, the Supreme Court, among other things, sua sponte, severed the action as to the 12 PCs, but permitted the plaintiff to serve an amended complaint against Dr. McGee and three PCs of the plaintiff’s choosing on a theory of fraudulent incorporation. The Supreme Court also denied those branches of the plaintiff’s motion which were pursuant to CPLR 3211 (a) (3) and (7) to dismiss the defendants’ counterclaims, with leave to renew after joinder of issue on an amended complaint.

The Supreme Court improvidently exercised its discretion in, sua sponte, severing the action as to the 12 PCs, and, in effect, permitting the action to continue only against Dr. McGee and 3 of the 12 PCs. “Although it is within a trial court’s discretion to grant a severance, this discretion should be exercised sparingly” (Shanley v Callanan Indus., 54 NY2d 52, 57 [1981]; see Curreri v Heritage Prop. Inv. Trust, Inc., 48 AD3d 505, 507 [2008]; Lelekakis v Kamamis, 41 AD3d 662, 666 [2007]). Severance is inappropriate where the claims against the defendants involve common factual and legal issues, and the interests of judicial economy and consistency of verdicts will be served by having a single trial (see Bentoria Holdings, Inc. v Travelers Indem. Co., 84 AD3d 1135 [2011]; Curreri v Heritage Prop. Inv. Trust, Inc., 48 AD3d at 507-508; Lelekakis v Kamamis, 41 AD3d at 666; Naylor v Knoll Farms of Suffolk County, Inc., 31 AD3d 726, 727 [2006]). Here, the complaint alleged the existence of a common scheme to fraudulently incorporate the PCs through the use of Dr. McGee’s professional license, which, if established, would render all of the PCs ineligible to recover no-fault benefits (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 319-322 [2005]). The common factual and legal issues presented as to whether the 12 PCs were fraudulently incorporated predominate the action and, thus, the interests of judicial economy and consistency of verdicts would be not be served by requiring the plaintiff to commence multiple actions. To the contrary, such fragmentation would increase litigation and place “an unnecessary burden on court facilities” (Shanley v Callanan Indus., 54 NY2d at 57), by requiring four separate trials instead of one.

Furthermore, the Supreme Court should have granted that branch of the plaintiff’s motion which was to dismiss the defendants’ counterclaims pursuant to CPLR 3211 (a) (7). The counterclaims are predicated on the defendants’ allegation that they are entitled to reimbursement for medical services provided under the medical payments coverage provisions of the subject insurance policies rather than the no-fault coverage provisions. However, medical payments coverage is excess coverage over mandatory no-fault coverage (see 11 NYCRR 65-1.1), and the defendants have failed to allege or otherwise demonstrate that the payments they seek exceed the no-fault threshold of $50,000 for basic economic loss of an eligible injured person for a single accident. Since the defendants have failed to allege facts which, if true, would entitle them to recover for medical services rendered under medical payments coverage, the counterclaims fail to state a cause of action (see generally Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Jaymer Communications, Inc. v Associated Locksmiths of Am., Inc., 84 AD3d 888 [2011]).

The plaintiff’s remaining contention that the Supreme Court should have granted that branch of their motion which was pursuant to CPLR 3211 (a) (3) to dismiss the counterclaims because the defendants lacked standing to assert them is without merit. Rivera, J.P., Eng, Roman and Miller, JJ., concur. [Prior Case History: 25 Misc 3d 1232(A), 2009 NY Slip Op 52385(U).]

—[*1] Thomas Torto, New York, for appellant.

Ruskin Moscou Faltischek, P.C., Uniondale (Matthew F. Didora of counsel), for respondent.

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered November 30, 2010, which denied the petition to stay arbitration of claims for no-fault insurance benefits and granted respondent’s cross motion to dismiss the proceeding, unanimously affirmed, with costs.

Petitioner argues that respondent is a fraudulently incorporated medical services provider and therefore is not only ineligible for reimbursement of no-fault payments (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]) but is also precluded from demanding arbitration pursuant to Insurance Law § 5106 (b) (and the no-fault policy issued by petitioner). Contrary to this argument, the defense of fraudulent incorporation is “for the arbitrator and not for the courts” (see Matter of Nassau Ins. Co. v McMorris, 41 NY2d 701, 701 [1977]; Matter of MVAIC v Interboro Med. Care & Diagnostic PC, 73 AD3d 667 [2010]). Indeed, it has been the subject of numerous arbitration proceedings (see e.g. State Farm Mut. Auto. Ins. Co. v Kissena Med. Imaging, P.C., 25 Misc 3d 1214[A], 2009 NY Slip Op 52094[U] [2009]; Uptodate Med. Serv., P.C. v State Farm Mut. Auto. Ins. Co., 22 Misc 3d 128[A], 2009 NY Slip Op 50046[U], *2 [2009]).

We have considered plaintiff’s remaining contentions and find them unavailing. Concur—Andrias, J.P., Sweeny, Renwick, Freedman and Manzanet-Daniels, JJ.

—[*1] Serpe, Andree & Kaufman, Huntington, N.Y. (Cynthia G. Gamana of counsel), for appellant.

Bandel & Bandel, Garden City, N.Y. (Steven Bandel of counsel), for respondents.

In two related subrogation actions to recover insurance benefits paid to the plaintiff’s insured in actions Nos. 1 and 3 and a related action to recover damages for personal injuries (action No. 2), the plaintiff in actions Nos. 1 and 3 appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Parga, J.), dated June 17, 2010, as denied that branch of its motion which was, in effect, to dismiss the counterclaim asserted against it in action No. 3 and, in effect, granted the cross motion of the defendants in actions Nos. 1 and 3 for an award of costs and an attorney’s fee against it pursuant to CPLR 8303-a and 22 NYCRR 130-1.1.

Ordered that the order is reversed insofar as appealed from, on the law, on the facts, and in the exercise of discretion, with costs, that branch of the motion of the plaintiff in actions Nos. 1 and 3 which was, in effect, to dismiss the counterclaim asserted against it in action No. 3 is granted, and the cross motion of the defendants in actions Nos. 1 and 3 for an award of costs and an attorney’s fee against the plaintiff in actions Nos. 1 and 3 pursuant to CPLR 8303-a and 22 NYCRR 130-1.1 is denied.

Allegedly, on June 8, 2003, a vehicle operated by Scott Shelofsky and owned by Scott Shelofsky and/or Toni Ann Shelofsky (hereinafter together the Shelofskys) collided with a vehicle operated by Rebecca E. Munoz and owned by Bina E. Munoz. Providence Washington Insurance Company (hereinafter Providence) paid the Shelofskys’ insurance claim for damage to their vehicle [*2]resulting from the collision, pursuant to an insurance policy it had issued to them. Thereafter, Providence, as subrogee of the Shelofskys, commenced an action in the District Court, Nassau County, against Bina E. Munoz and Rebecca E. Munoz (hereinafter together the defendants) to recover the insurance benefits it paid to the Shelofskys (hereinafter action No. 3). In their answer, the defendants interposed a counterclaim against Providence to recover damages for injury to property, alleging that damage to their vehicle was caused by Scott Shelofsky’s negligent operation of the Shelofsky vehicle. Providence then commenced a second subrogation action against the defendants in the Supreme Court, Nassau County, this time to recover certain no-fault and uninsured motorist benefits it had paid to the Shelofskys (hereinafter action No. 1).

In an order dated June 25, 2007, the Supreme Court transferred action No. 3 from the District Court to the Supreme Court and joined actions Nos. 1 and 3 for purposes of trial, together with a related personal injury action commenced by Rebecca Munoz against the Shelofskys in connection with the same collision (hereinafter action No. 2). Thereafter, Providence moved pursuant to CPLR 3217 (b) to voluntarily discontinue its causes of action in actions Nos. 1 and 3 and, in effect, to dismiss the defendants’ counterclaim asserted against it in action No. 3. Providence contended that because a counterclaim in a subrogation action may be employed only to assert a set-off against the subrogee’s claim, the voluntary discontinuance of its causes of action warranted dismissal of the counterclaim in action No. 3. The defendants cross-moved for an award of costs and an attorney’s fee against Providence pursuant to CPLR 8303-a and 22 NYCRR 130-1.1. The Supreme Court granted that branch of Providence’s motion which was to voluntarily discontinue its causes of action in actions Nos. 1 and 3, but denied that branch of Providence’s motion which was, in effect, to dismiss the defendants’ counterclaim asserted against it in action No. 3 and, in effect, granted the defendants’ cross motion. We reverse the order insofar as appealed from.

Contrary to the defendants’ contention, their counterclaim against Providence in action No. 3 “cannot effect an affirmative recovery against [Providence], but rather may be maintained . . . only to the extent of setting off [Providence]’s claim” (Peerless Ins. Co. v Michael Beshara, Inc., 75 AD3d 733, 736 [2010]; see Allstate Ins. Co. v Babylon Chrysler Plymouth, 45 AD2d 969 [1974]; U.S. Underwriters Ins. Co. v Greenwald, 31 Misc 3d 1206[A], 2010 NY Slip Op 52394[U] [2010], affd 82 AD3d 411 [2011]). Accordingly, the Supreme Court, upon granting that branch of Providence’s motion which was to voluntarily discontinue its causes of action in action Nos. 1 and 3, also should have granted that branch of Providence’s motion which was, in effect, to dismiss the defendants’ counterclaim asserted against it in action No. 3.

Moreover, the Supreme Court improvidently exercised its discretion in granting the defendants’ cross motion for an award of costs and an attorney’s fee against Providence pursuant to CPLR 8303-a and 22 NYCRR 130-1.1. The defendants failed to demonstrate that Providence’s conduct was frivolous within the meaning of 22 NYCRR 130-1.1 (c), or that its actions were commenced or continued in bad faith (see CPLR 8303-a [c] [i]; Broich v Nabisco, Inc., 2 AD3d 474, 475 [2003]; Karnes v City of White Plains, 237 AD2d 574, 576 [1997]). We note that the Supreme Court did not follow the proper procedure for imposing costs and an attorney’s fee, since it failed to specify in a written decision the conduct upon which the award was based and the reasons why it found the conduct to be frivolous (see 22 NYCRR 130-1.2; Badillo v Badillo, 62 AD3d 635, 636 [2009]; Hamilton v Cordero, 10 AD3d 702, 703 [2004]). Dillon, J.P., Covello, Chambers and Roman, JJ., concur.

—[*1] Jaffe & Koumourdas, LLP, New York, N.Y. (Jean H. Kang of counsel), for appellant.

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

In an action to recover no-fault medical payments under two insurance policies, the defendant appeals (1) from an order of the Supreme Court, Nassau County (Winslow, J.), entered July 19, 2010, which granted the plaintiffs’ motion for summary judgment on the complaint and denied its cross motion for summary judgment, in effect, dismissing the complaint, and (2) as limited by its brief, from so much of an order of the same court entered February 7, 2011, as denied those branches of its motion which were for leave to renew its cross motion for summary judgment, in effect, dismissing the complaint and its opposition to the plaintiffs’ motion for summary judgment on the complaint.

Ordered that the order entered July 19, 2010, is modified, on the law, by deleting the provision thereof granting the plaintiffs’ motion for summary judgment on the complaint, and substituting therefor a provision denying the plaintiffs’ motion; as so modified, the order entered July 19, 2010, is affirmed, without costs or disbursements; and it is further,

Ordered that the appeal from so much of the order entered February 7, 2011, as denied that branch of the defendant’s motion which was for leave to renew its opposition to the plaintiffs’ motion for summary judgment is dismissed as academic, without costs or disbursements, in light of our determination on the appeal from the order entered July 19, 2010; and it is further,

Ordered that the order entered February 7, 2011, is affirmed insofar as reviewed, without costs or disbursements.

The plaintiffs made a prima facie showing of their entitlement to judgment as a matter of law on their causes of action to recover no-fault insurance medical payments by submitting evidence that the necessary billing documents had been mailed and received by the defendant insurer, which failed to either pay or deny the claims within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603, 604 [2011]; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014, 1017 [2008]). However, in opposition, the defendant raised triable issues of fact with respect to whether the limits [*2]of the policy at issue in the first cause of action were exhausted through the payment of claims for prior services during a time that the 30-day period was tolled pursuant to the defendant’s request for additional verification (see 11 NYCRR 65-3.5 [b]; 65-3.8 [a] [1]; 65-3.15; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Westchester Med. Ctr. v Hartford Cas. Ins. Co., 58 AD3d 832, 833 [2009]; Montefiore Med. Ctr. v Government Empls. Ins. Co., 34 AD3d 771, 771-772 [2006]), and whether the claim at issue in the second cause of action was paid by the defendant, with appropriate overdue interest, prior to the commencement of this action (see Insurance Law § 5106 [a]). Accordingly, the Supreme Court should have denied the plaintiffs’ motion for summary judgment on the complaint. Because of the aforementioned issues of fact, the Supreme Court properly denied the defendant’s cross motion for summary judgment, in effect, dismissing the complaint.

The Supreme Court also properly denied that branch of the defendant’s motion which was for leave to renew its cross motion for summary judgment, in effect, dismissing the complaint, as the defendant failed to offer a reasonable justification for its failure to submit the new facts at the time of the prior motion (see CPLR 2221 [e] [3]; Matter of Leone Props., LLC v Board of Assessors for Town of Cornwall, 81 AD3d 649, 652 [2011]; Greene v New York City Hous. Auth., 283 AD2d 458, 459 [2001]). Prudenti, P.J., Eng, Hall and Lott, JJ., concur.

—[*1] Teresa M. Spina, Woodbury, N.Y. (Jeanne M. Ortega and P. Stephanie Estevez of counsel), for appellant.

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

In an action to recover no-fault medical payments under certain insurance policies, the defendant appeals from an order of the Supreme Court, Nassau County (Marber, J.), entered June 29, 2010, which granted the motion of the plaintiff New York and Presbyterian Hospital, as assignee of Gregory Berkley, for summary judgment on the fourth cause of action.

Ordered that the order is reversed, on the law, with costs, and the motion of the plaintiff New York and Presbyterian Hospital, as assignee of Gregory Berkley, for summary judgment on its fourth cause of action is denied.

The plaintiff New York and Presbyterian Hospital, as assignee of Gregory Berkley (hereinafter the hospital), made a prima facie showing of entitlement to judgment as a matter of law with respect to the fourth cause of action to recover no-fault medical payments by demonstrating that the necessary billing forms had been mailed to and received by the defendant and that the defendant had failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.5; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317-318 [2007]; Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d 929 [2011]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1046 [2009]).

However, in opposition, the defendant raised a triable issue of fact as to whether it issued a denial of claim form dated April 2, 2008, to the hospital (see NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190 [2011]; St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]). Accordingly, the Supreme Court should have denied the hospital’s motion for summary judgment on its fourth cause of action. Rivera, J.P., Eng, Roman and Miller, JJ., concur.

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellants. McDonnell & Adels, PLLC, Garden City, N.Y. (Jannine A. Gordineer of counsel), for respondent.

In an action to recover no-fault medical payments under an insurance contract, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), entered December 29, 2010, as denied that branch of their motion which was for summary judgment on the first cause of action.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action is granted.

The plaintiffs made a prima facie showing that the plaintiff Nyack Hospital, as assignee of Rochelle Ferguson, was entitled to judgment as a matter of law on its cause of action to recover no-fault insurance medical payments by submitting evidence that the prescribed statutory billing form had been mailed and received by the defendant and that the defendant had failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.5; Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d 929 [2011]; Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045, 1045-1046 [2009]).

In opposition to the motion, the defendant failed to raise a triable issue of fact. The defendant acknowledged that it failed to timely deny that claim, but contended that it raised a triable issue of fact by submitting evidence which indicates that Ferguson intentionally caused her injury in an attempt to commit suicide. However, the failure to establish timely denial of the claim results in the preclusion of the defense that Ferguson’s allegedly intentional act was the cause of the accident and subject to exclusion under the insurance contract (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286 [1997]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]). Accordingly, the Supreme Court should have granted that branch of the plaintiff’s motion which was for summary judgment on the first cause of action.

In light of our determination, we need not address the plaintiffs’ remaining contention. Mastro, J.P., Leventhal, Austin and Cohen, JJ., concur.