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

In an action to recover assigned first party no-fault medical payments under an insurance contract, the defendant appeals, by permission, as limited by its brief, from so much of an order of the Appellate Term, Second, Eleventh, and Thirteenth Judicial Districts, dated May 8, 2009, as modified a judgment of the Civil Court of the City of New York, Queens County (Lebedeff, J.), entered February 19, 2008, which, upon an order of the same court (Lebedeff, J.), dated January 23, 2008, inter alia, granting the plaintiff’s motion for summary judgment and denying its cross motion for summary judgment dismissing the complaint, is in favor of the plaintiff and against it in the principal sum of $2,856.45 only to the extent of reducing the award to the principal sum of $2,627.90.

Ordered that the order dated May 8, 2009, is reversed insofar as appealed from, on the facts and in the exercise of discretion, with costs, the judgment of the Civil Court of the City of New York, Queens County, entered February 19, 2008, is reversed, the plaintiff’s motion for summary judgment is denied, the defendant’s cross motion for summary judgment dismissing the complaint is granted, without prejudice to the commencement of a new action, and the order dated January 23, 2008, is modified accordingly.

Contrary to the conclusion of the Appellate Term, under the circumstances of this case, the defendant insurer’s submission of follow-up verification requests to the plaintiff medical provider on the 30th day after the defendant sent its initial verification requests was not premature or “without effect” (Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d 862, 864 [2009]). Furthermore, since the plaintiff did not fully comply with the defendant’s verification requests, the 30-day period within which the defendant was required to pay or deny the claim did not commence to run (see 11 NYCRR 65-3.8 [a] [1]; [b] [3]; Infinity Health Prods., Ltd. v Eveready Ins. Co., 67 AD3d at 865; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]). Thus, the action was commenced prematurely (see Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432 [2004]).

Accordingly, the plaintiff’s motion for summary judgment should have been denied, and the defendant’s cross motion for summary judgment dismissing the complaint should have been granted (see [*2]Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d at 553; see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]), without prejudice to commencement of a new action. Prudenti, P.J., Angiolillo, Florio and Sgroi, JJ., concur.

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

In an action to recover assigned first-party no-fault benefits under an insurance contract, the defendant appeals, by permission, from an order of the Appellate Term, Second, Eleventh, and Thirteenth Judicial Districts, dated May 8, 2009, which affirmed an order of the Civil Court of the City of New York, Queens County (Lebedeff, J.), dated August 1, 2007, denying the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order dated May 8, 2009, is reversed, on the facts and in the exercise of discretion, with costs, the order of the Civil Court of the City of New York, Queens County, dated August 1, 2007, is reversed, and the defendant’s motion for summary judgment dismissing the complaint is granted, without prejudice to the commencement by the plaintiff of a new action.

Contrary to the conclusion of the Appellate Term, under the circumstance of this case, the defendant insurer’s submission of follow-up verification requests to the plaintiff medical provider on the 30th day after the defendant sent its initial verification requests was not premature or “without effect” (see St. Vincent Med. Care, P.C. v Country-Wide Ins. Co., 80 AD3d 599 [2011] [decided herewith]).

Accordingly, the defendant’s motion for summary judgment dismissing the complaint should have been granted. Prudenti, P.J., Angiolillo, Florio and Sgroi, JJ., concur.

—[*1] Basch & Keegan, L.L.P., Kingston (Derek J. Spada of counsel), for appellant.

Goldberg Segalla, L.L.P., Albany (Matthew S. Lerner of counsel), for respondent.

Rose, J. Appeal from an order of the Supreme Court (O’Connor, J.), entered June 29, 2010 in Ulster County, which granted defendant’s motion for summary judgment dismissing the complaint.

Plaintiff was injured while driving a vehicle insured by defendant. Defendant initially paid no-fault insurance benefits for her chiropractic treatment, but ceased doing so after an independent medical examination found no further treatment to be necessary. Plaintiff nevertheless received further treatment and commenced this action to recover benefits in 2005. After joinder of issue and discovery, defendant moved for dismissal of the complaint, asserting for the first time that plaintiff had assigned her right to payment for no-fault benefits to her chiropractor and did not have standing to bring the present action. Supreme Court agreed that plaintiff lacked the capacity to sue and dismissed the complaint, and plaintiff appeals.

Defendant asserted that plaintiff lacked standing to maintain this action but, as that defense was not raised in a pre-answer motion to dismiss or in defendant’s answer, it was waived and cannot [*2]now be advanced (see CPLR 3211 [a] [3]; [e]; McHale v Anthony, 70 AD3d 466, 467 [2010]; Todaro v GEICO Gen. Ins. Co., 46 AD3d 1086, 1087 [2007]). Contrary to defendant’s contention, the standing issue does not implicate the jurisdiction of Supreme Court such as to render it nonwaivable. Supreme Court is empowered to determine whether defendant is liable to pay no-fault benefits (see Marangiello v Kamak, 64 AD2d 624, 625 [1978]), and whether plaintiff is a proper person to pursue that claim “is an issue separate from the subject matter of the action or proceeding, and does not affect the court’s power to entertain the case before it” (Wells Fargo Bank Minn., N.A. v Mastropaolo, 42 AD3d 239, 243 [2007]; see Matter of Renee XX. v John ZZ., 51 AD3d 1090, 1092-1093 [2008]). Accordingly, defendant waived its right to assert lack of standing as an affirmative defense.

Peters, J.P., Lahtinen, Kavanagh and Egan Jr., JJ., concur. Ordered that the order is reversed, on the law, with costs, and motion denied.

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

Jaffe & Koumourdas, LLP, New York, N.Y. (Jean H. Kang of counsel), for respondent.

In an action to recover no-fault medical payments under an insurance contract, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Brandveen, J.), dated March 26, 2010, as granted the defendant’s cross motion to modify the amount of a judgment entered upon an order of the same court dated September 22, 2009, inter alia, granting that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action.

Ordered that the appeal by the plaintiffs Mary Immaculate Hospital-Caritas Health Care, as assignee of Leroy Pearson, and New York Hospital Medical Center of Queens, as assignee of Eugenia Theodosiou, is dismissed, as those plaintiffs are not aggrieved by the portion of the order appealed from; and it is further,

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

Ordered that one bill of costs is awarded to the defendant, payable by the plaintiff St. Barnabas Hospital, as assignee of Mariana Gonell.

The plaintiff St. Barnabas Hospital, as assignee of Mariana Gonell (hereinafter the plaintiff), was awarded summary judgment on a cause of action to recover no-fault medical payments from the defendant under an insurance contract. Thereafter, judgment was entered against the defendant in satisfaction, inter alia, of the aforementioned claim of the plaintiff. The defendant subsequently cross-moved pursuant to CPLR 5019 (a) to modify the amount of the judgment that was in satisfaction of that claim, on the ground that it exceeded the limits of the policy covering Gonell in light of payments made under that policy to other health care providers. The Supreme Court, among other things, granted the cross motion.

Contrary to the plaintiff’s contention, since the only issues decided in connection with the motion for summary judgment on its cause of action to recover no-fault medical payments were the questions of whether the defendant had failed to pay or deny the relevant claim within the statutory time frame, and whether the defendant had received verification of that claim, the defendant is not collaterally estopped from seeking to modify the amount of the judgment that was in satisfaction of the plaintiff’s claim, based upon the contention that the policy limits have been partially exhausted (see Hospital for Joint [*2]Diseases v Hertz Corp., 22 AD3d 724 [2005]; see generally Buechel v Bain, 97 NY2d 295, 303 [2001], cert denied 535 US 1096 [2002]; Frankel v J.P. Morgan Chase & Co., 76 AD3d 664 [2010]).

The plaintiff’s remaining contentions are without merit.

We note that, in affirming the Supreme Court’s order, we do not pass upon the propriety of the procedural mechanism utilized by the defendant, to wit, CPLR 5019 (a), to which the plaintiff did not object (see Misicki v Caradonna, 12 NY3d 511, 519 [2009]; Martin v City of Cohoes, 37 NY2d 162, 165-166 [1975]). Skelos, J.P., Fisher, Santucci and Leventhal, JJ., concur.

—[*1] Randall S. Ferguson, Roslyn Heights, N.Y., for appellant.

In a proceeding pursuant to CPLR article 75 to stay arbitration of an uninsured motorist claim, Taylor Raynor appeals from an order of the Supreme Court, Nassau County (Feinman, J.), entered January 28, 2010, which directed a hearing on all issues raised in the petition and on her cross motion to dismiss the proceeding as time-barred.

Ordered that on the Court’s own motion, the notice of appeal is deemed to be an application for leave to appeal, and leave to appeal is granted (see CPLR 5701 [c]); and it is further,

Ordered that the order is reversed, on the law, with one bill of costs to the appellant payable by the petitioner, and the cross motion to dismiss the proceeding as time-barred is granted.

The appellant alleged that she was injured as a result of an accident on May 15, 2009, caused by an uninsured vehicle. On June 12, 2009, the appellant’s attorney sent her insurer, the petitioner, Allstate Insurance Company (hereinafter Allstate), a certified letter, return receipt requested, claiming no-fault benefits, uninsured motorist benefits, and supplemental insurance benefits. The letter contained a notice of intention to arbitrate, and stated that unless Allstate applied to stay arbitration within 20 days after receipt of the notice, Allstate would thereafter be precluded from objecting, inter alia, that a valid agreement to arbitrate was not made or complied with. The appellant’s attorney sent Allstate an American Arbitration Association “request for arbitration” form dated November 5, 2009. On November 20, 2009, Allstate commenced this proceeding pursuant to CPLR article 75 to stay arbitration on the ground that the offending vehicle was insured on the date of the accident.

The Supreme Court should have granted the appellant’s cross motion to dismiss the proceeding as time-barred, as the proceeding was not commenced within 20 days of the June 12, 2009, notice of intention to arbitrate (see CPLR 7503 [c]; Matter of Liberty Mut. Ins. Co. v Zacharoudis, 65 AD3d 1353, 1354 [2009]; Matter of Government Empls. Ins. Co. v Castillo-Gomez, 34 AD3d 477, 478 [2006]; Matter of CNA [Pough], 99 AD2d 510 [1984]). Florio, J.P., Belen, Lott and Austin, JJ., concur.

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

Epstein, Frankini & Grammatico, Woodbury, N.Y. (Frank J. Marotta of counsel), for respondent.

In an action to recover no-fault medical benefits under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Murphy, J.), entered April 6, 2010, which denied its motion for summary judgment on the complaint.

Ordered that the order is affirmed, with costs.

Pursuant to the statutory and regulatory framework governing the payment of no-fault automobile benefits, insurance companies are required to either pay or deny a claim for benefits within 30 days of receipt of the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]). Here, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law on its claim for benefits since the evidence demonstrates that the defendant made a partial payment and a partial denial of the claim within 30 days after receipt thereof (see New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512 [2006]; see generally Alvarez v Prospect Hosp., 68 NY2d 320 [1986]).

Furthermore, under the circumstances of this case, the minor factual discrepancy contained in the defendant’s denial of claim form did not invalidate the denial. In addition, the denial was not conclusory or vague, and did not otherwise involve a defense which had no merit as a matter of law (see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2004], citing Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [2004]; cf. New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., 32 AD3d 458, 460 [2006]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]).

Since the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law, we need not consider the sufficiency of the defendant’s papers in opposition to the motion (see Moore v Stasi, 62 AD3d 764 [2009]; Marshak v Migliore, 60 AD3d 647 [2009]). Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment on the complaint. Skelos, J.P., Covello, Balkin and Sgroi, JJ., concur.

—[*1] Hession Bekoff Cooper & LoPiccolo, LLP, Garden City (Jonathan M. Cader of counsel), and Baker, Sanders, Barshay, Grossman, Fass, Muhlstock & Neuwirth, Mineola (Todd Fass of counsel), for appellants. Cadwalader, Wickersham & Taft LLP, New York (William J. Natbony of counsel), for respondents.

Order, Supreme Court, New York County (Eileen Bransten, J.), entered March 26, 2009, which denied the motion by defendants Belt Parkway Imaging, P.C., Diagnostic Imaging, P.C., Metroscan Imaging, P.C., Parkway MRI, P.C. (the PC defendants) and Herbert Rabiner, M.D., for partial summary judgment, unanimously affirmed, without costs.

“A provider of health care services is not eligible for reimbursement under section 5102(a) (1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement” (11 NYCRR 65-3.16 [a] [12]). Pursuant to this regulation, the Court of Appeals held that “insurance carriers may withhold payment for medical services provided by fraudulently incorporated enterprises” (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313, 319, 321 [2005]). Mallela was decided on March 29, 2005. The Legislature subsequently enacted Insurance Law § 5109, which became effective on August 2, 2005.

There is no indication in section 5109 that the statute overrules Mallela. Nor is there any such indication in its legislative history, which “must be reviewed in light of the existing decisional law which the Legislature is presumed to be familiar with” (Matter of Knight-Ridder Broadcasting v Greenberg, 70 NY2d 151, 157 [1987]).

Section 5109 (a) states, “The superintendent, in consultation with the commissioner of health and the commissioner of education, shall by regulation, promulgate standards and procedures for investigating and suspending or removing the authorization for providers of health services to demand or request payment for health services as specified in” Insurance Law § 5102 (a) (1). However, the Superintendent of Insurance has issued no regulations pursuant to section 5109 (a). Thus, if—as defendants contend—only the Superintendent can take action against fraudulently incorporated health care providers, then no one can take such action. In light of the [*2]fact that “[t]he purpose of the regulations of which [11 NYCRR] 65-3.16 (a) (12) is a part was to combat fraud” (Allstate Ins. Co. v Belt Parkway Imaging, P.C., 33 AD3d 407, 409 [2006]), this would be an absurd result, and we reject it (McKinneys Cons Laws of NY, Book 1, Statutes § 145).

Defendants’ contention that plaintiffs fail to state a cause of action for unjust enrichment because they have not alleged that the services rendered by the PC defendants were medically unnecessary is without merit. Paragraph 1 of the second amended complaint alleges that “numerous unnecessary referrals were made subjecting many patients to unnecessary testing and/or radiation.” Concur—Gonzalez, P.J., Mazzarelli, Nardelli, Renwick and DeGrasse, JJ.

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

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

In an action to recover no-fault medical payments under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Galasso, J.), entered December 17, 2009, which denied its motion for summary judgment on the complaint.

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

In opposition to the plaintiff’s prima facie showing of entitlement to judgment as a matter of law (see Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014, 1017 [2008]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750, 752 [2007]), the defendant failed to raise a triable issue of fact as to whether it properly denied the plaintiff’s claim for no-fault benefits based on the alleged intoxication of the plaintiff’s assignor at the time of the accident. Since the defendant failed to submit any evidence whatsoever from which the circumstances of the accident could be ascertained, the nature of the accident is unknown, and, thus, the defendant’s evidence, while presenting a factual question as to whether the plaintiff’s assignor was operating a vehicle in an intoxicated condition, was insufficient by itself to raise a triable issue of fact as to whether the plaintiff’s assignor was “injured as a result of operating a motor vehicle while in an intoxicated condition” (Insurance Law § 5103 [b] [2] [emphasis added]; see 11 NYCRR 65-3.14 [b]; cf. Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d at 1017; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d at 752; Lynch v Progressive Ins. Co., 12 AD3d 570 [2004]; Scahall v Unigard Ins. Co., 222 AD2d 1070 [1995]; Cernik v Sentry Ins., 131 AD2d 952 [1987]; McCarthy v Commercial Union Ins. Co., 194 Misc 2d 295, 297 [2002]). Accordingly, while, under the circumstances of this case, there is no merit to the plaintiff’s remaining contentions concerning the facial sufficiency of the form used to deny the claim and the Supreme Court’s consideration of certain uncertified medical records (see Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d at 1017; Westchester Med. Ctr. v Allstate Ins. Co., 45 AD3d 579, 580 [2007]), its motion for summary judgment should nonetheless have been granted. Skelos, J.P., Santucci, Dickerson and Leventhal, JJ., concur.

—[*1] Abdella Law Offices, Gloversville (J. David Burke of counsel), for appellant.

Law Office of Taylor & Associates, Albany (Sean A. Tomko of counsel), for respondent.

Cardona, P.J. Appeal from an order of the Supreme Court (Aulisi, J.), entered October 20, 2009 in Fulton County, which granted petitioner’s application pursuant to CPLR 7503 to stay arbitration between the parties.

While respondent Marcia Malatino (hereinafter respondent) was returning to work after taking a break in the employer’s parking lot, she walked into a piece of sheet metal extending approximately five feet beyond the tailgate of a coworker’s parked pickup truck,^[FN1] sustaining facial lacerations and a broken nose. According to the record, the coworker had torn the sheet metal off a building on his property and planned to deliver it to a junkyard after work. [*2]

Thereafter, respondent settled with the coworker’s automobile liability insurer for $25,000—the policy limit—and received a lump-sum workers’ compensation award. Seeking additional compensation, respondent subsequently demanded arbitration as a named insured under the supplemental underinsured motorists provisions of an insurance policy issued by petitioner. Petitioner sought to stay arbitration on the grounds that respondent’s injuries did not, as required by the policy, arise out of the “ownership, maintenance or use” of the coworker’s motor vehicle and, alternatively, because respondent was injured as a result of the alleged negligence of a coworker, workers’ compensation was her exclusive remedy (see Workers’ Compensation Law § 29 [6]). Supreme Court, finding, among other things, that there was no use or operation of the vehicle, granted petitioner’s application, and this appeal ensued.

Initially, we note that the issue herein involves the right to arbitration under the specific terms of the parties’ supplemental underinsured motorists policy and not the application of any statutory no-fault provisions.^[FN2] A court may grant an application to stay arbitration “where ‘the particular claim sought to be arbitrated is outside [the] scope’ of the agreement to arbitrate” (Matter of Farm Family Cas. Ins. Co. [Trapani], 301 AD2d 740, 741 [2003], quoting Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1, 7 [1980]). Generally, “policies of insurance are to be construed liberally in favor of the insured and strictly against the insurer” (Penna v Federal Ins. Co., 28 AD3d 731, 731 [2006]; see Government Empls. Ins. Co. v Kligler, 42 NY2d 863, 864 [1977]; see generally Turkow v Erie Ins. Co., 20 AD3d 649, 650 [2005]). Where ambiguity exists as to coverage, doubt should be resolved in favor of the insured (see Handelsman v Sea Ins. Co., 85 NY2d 96, 101 [1994]; Penna v Federal Ins. Co., 28 AD3d at 731). Supplemental underinsured motorists coverage policies, such as the one at issue herein, apply only when an insured’s injuries are “caused by an accident arising out of such [underinsured] motor vehicle’s ownership, maintenance or use” (11 NYCRR 60-2.3 [f] [II]; see Matter of Farm Family Cas. Ins. Co. [Trapani], 301 AD2d at 741). “Use” of a vehicle encompasses more than just driving, and extends to other incidental activities (see Rowell v Utica Mut. Ins. Co., 77 NY2d 636, 639 [1991]). Furthermore, the use of the underinsured vehicle must be a proximate cause of the injuries for which coverage is sought (see Matter of Farm Family Cas. Ins. Co. [Trapani], 301 AD2d at 741).

Clearly, the pickup truck was not being operated at the time of the accident—having been parked in the employer’s lot when the coworker arrived at work. The focus herein, however, is whether the vehicle was in use so as to fall within the scope of the terms of the supplemental underinsured motorists policy. Here, at the time of respondent’s injury, the pickup truck was being used by the coworker to transport the sheet metal to the junkyard after work. Construing the language of the supplemental underinsured motorists policy liberally “in favor of the insured and strictly against the insurer” (Penna v Federal Ins. Co., 28 AD3d at 731), and given the causal connection between the use of the pickup truck to transport the sheet metal and respondent’s injuries, we find that respondent’s request for arbitration falls within the scope of the parties’ agreement. Accordingly, under the particular circumstances herein, the application for a stay of arbitration should have been denied.

Furthermore, the record is clear that the use of the pickup truck to transport the sheet [*3]metal was unrelated to the coworker’s employment and, therefore, the exclusive remedy provision of Workers’ Compensation Law § 29 (6) is inapplicable and cannot form the basis for granting the stay of arbitration.

Spain, Stein and Egan Jr., JJ., concur.

McCarthy, J. (dissenting). Because respondent Marcia Malatino (hereinafter respondent) did not sustain injuries arising out of the ownership, maintenance or use of a motor vehicle, petitioner was entitled to a stay of arbitration.^[FN1] Respondent’s coworker parked his pickup truck in the employer’s parking lot in the morning and apparently intended to leave the vehicle there for his entire eight-hour shift. If respondent had walked into the parked truck itself, her injuries would not have arisen out of the use of the vehicle (see Wooster v Soriano, 167 AD2d 233, 234 [1990]; McConnell v Fireman’s Fund Am. Ins. Co., 49 AD2d 676, 677 [1975]). The same result should follow when she walked into materials protruding from the bed of the truck.

While “use” of a motor vehicle encompasses more than just driving and extends to other incidental activities (see Rowell v Utica Mut. Ins. Co., 77 NY2d 636, 639 [1991]), there are limits to that term and the corresponding insurance coverage.^[FN2] The majority holds that the truck here was being used to contain sheet metal until the coworker could transport it, rendering the vehicle in “use.” This broad finding places no parameters on the use of a vehicle. It is unclear if the majority considered that the truck was in use while containing the sheet metal only because the coworker intended to transport the sheet metal to the junkyard that same day, or if the truck would be considered in use as a vehicle if the sheet metal was placed there a year earlier and the coworker regularly parked his truck with metal protruding from his tailgate. Conversely, if the truck was never moved from the parking lot but was regularly utilized to store different materials in the same location, would the parked truck constantly be in use as a vehicle? Rather than [*4]expanding the application of the statute and regulation requiring coverage for injuries arising out of a “motor vehicle’s ownership, maintenance or use” (11 NYCRR 60-2.3 [f] [II]; see Insurance Law § 3420 [f] [1]), we should adhere to the current rule that looks to whether the “circumstances constituted an ‘on-going activity relating to the vehicle’ which would necessitate a conclusion that the vehicle was in use” (Trentini v Metropolitan Prop. & Cas. Ins. Co., 2 AD3d 957, 958 [2003], lv dismissed 2 NY3d 823 [2004], quoting Matter of Celona v Royal Globe Ins. Co., 85 AD2d 635, 636 [1981]; see Zaccari v Progressive Northwestern Ins. Co., 35 AD3d 597, 599-600 [2006]; Wooster v Soriano, 167 AD2d at 234).

In Sullivan v Barry Scott Agency, Inc. (23 AD3d 889 [2005]), this Court held that a plaintiff’s back injury caused by lifting a heavy box was not related to the use of a motor vehicle, even though he was standing in a delivery van when unloading the box. We found the proximity to the vehicle “wholly incidental,” “[a]s plaintiff’s injuries would have occurred even if he had been standing on the ground and lifting the box” (id. at 890; see Sochinski v Bankers & Shippers Ins. Co., 221 AD2d 889, 889 [1995]; United Servs. Auto. Assn. v Aetna Cas. & Sur. Co., 75 AD2d 1022, 1022 [1980]; cf. Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 215 [1996]). Similarly, respondent here would have received the same injuries had the sheet metal she walked into been protruding from any object other than a vehicle. Under the circumstances, there was no ongoing activity related to the parked truck—in its capacity as a motor vehicle, rather than as a storage bin for sheet metal—so as to necessitate a conclusion that the vehicle was in use when respondent was injured (see Sullivan v Barry Scott Agency, Inc., 23 AD3d at 890; Matter of New York Cent. Mut. Fire Ins. Co. [Hayden—Allstate Ins. Co.], 209 AD2d 927, 928 [1994] [staying arbitration where “accident did not arise out of the inherent nature of the automobile as such”]; Reisinger v Allstate Ins. Co., 58 AD2d 1028, 1028 [1977], affd 44 NY2d 881 [1978]; McConnell v Fireman’s Fund Am. Ins. Co., 49 AD2d at 677). Accordingly, petitioner was entitled to a stay of arbitration because its insurance policy does not provide coverage for respondent’s injuries.

Ordered that the order is reversed, on the law, with costs, and application denied.

Footnotes

Footnote 1: No red flag was placed on the sheet metal in accordance with Vehicle and Traffic Law § 375 (27) despite the fact that it protruded more than four feet beyond the tailgate of the pickup.

Footnote 2: Thus, we do not find the dissent’s reference to cases interpreting no-fault provisions in insurance policies to be applicable.

Footnote 1: The parties do not contend that respondent’s accident arose from ownership or maintenance of a motor vehicle, so we likewise focus on whether her injuries arose from the vehicle’s use.

Footnote 2: The majority asserts that case law requires us to strictly construe the insurance policy against the insurer (see Penna v Federal Ins. Co., 28 AD3d 731, 731 [2006]). While that is the general rule—based upon a canon of contract interpretation that courts construe terms against the drafter (see Guardian Life Ins. Co. of Am. v Schaefer, 70 NY2d 888, 890 [1987])—it is unfair to apply that rule where, as here, the provision at issue was not written by the insurer, but was drafted by the Insurance Department, and its inclusion was mandated by law (see Insurance Law § 3420 [f] [1]; 11 NYCRR 60-2.3 [f]; see generally Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 214 [1996]). I therefore find cases interpreting mandatory no-fault provisions more pertinent.

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

Goldberg & Segalla, L.L.P., Buffalo (Anthony L. Germano of counsel), for respondent.

Stein, J. Appeal from an order of the Supreme Court (Rumsey, J.), entered January 23, 2009 in Cortland County, which, among other things, granted defendant’s motion to extend its time to answer and to compel plaintiff to accept late service of the answer.

In January 2002, plaintiff notified defendant, his no-fault insurance carrier, of an accident wherein the car he was driving was struck from behind. Defendant denied coverage for the claim in July 2002. Almost six years later, plaintiff commenced this action for breach of contract and dealing in bad faith.

Plaintiff served a summons and verified complaint on the Insurance Department on July 29, 2008 pursuant to Insurance Law § 1212. However, defendant allegedly did not receive them until August 21, 2008. Although defendant served an answer on August 28, 2008, plaintiff rejected it because it was not verified. On September 4, 2008—one day after receiving plaintiff’s letter of rejection—defendant served a second answer, virtually identical to the first but properly verified, which was rejected by plaintiff as untimely. Defendant then promptly moved to extend its time to answer and to compel plaintiff to accept late service thereof. Plaintiff cross-moved for a default judgment. Supreme Court granted defendant’s motion—giving defendant 30 days to file, serve and file proof of service of the second answer—and denied plaintiff’s cross motion. Plaintiff now appeals and we affirm. [*2]

Pursuant to CPLR 3012 (d), Supreme Court has the discretion to permit late service of an answer upon the demonstration of a reasonable excuse for the delay or default (see Rickert v Chestara, 56 AD3d 941, 942 [2008]; Watson v Pollacchi, 32 AD3d 565, 565 [2006]). “To that end, ‘[w]hether there is a reasonable excuse for a default is a discretionary, sui generis determination to be made by the court based on all relevant factors, including the extent of the delay, whether there has been prejudice to the opposing party, whether there has been willfulness, and the strong public policy in favor of resolving cases on the merits’ ” (Rickert v Chestara, 56 AD3d at 942, quoting Harcztark v Drive Variety, Inc., 21 AD3d 876, 876-877 [2005]; see Watson v Pollacchi, 32 AD3d at 565). Also relevant is whether the untimely answer sets forth a meritorious defense to plaintiff’s complaint (see Rickert v Chestara, 56 AD3d at 942; Watson v Pollacchi, 32 AD3d at 565).

Here, contrary to plaintiff’s assertion, we find that defendant proffered both a reasonable excuse for its delay in serving a verified answer and a sufficiently meritorious defense to the claims. Defendant proffered several reasons for its delay. First, defendant submitted evidence that it did not actually receive the complaint from the Insurance Department until one week before the time to answer expired and that an incorrect date of service on the transmittal sheet caused further delay in the complaint being referred to counsel. After unsuccessfully attempting to contact plaintiff to obtain an extension of time to serve an answer, defendant effected such service one day after counsel’s receipt of the complaint. Secondly, defendant alleged law office failure in neglecting to include the verification with the initial answer, which was timely served. In our view, these circumstances established a reasonable excuse for the default (see CPLR 2005).

We also note that defendant’s answer set forth a myriad of defenses including, among others, failure to state a cause of action, failure to comply with the terms and conditions of the policy, fraud or perjury on plaintiff’s part and that the claim is time-barred. In addition, defendant’s attorney provided Supreme Court with the original denial of coverage letter, which set forth in detail the reasons why plaintiff’s claim for benefits was denied. Such assertions set forth a sufficiently meritorious defense for purposes of defendant’s motion (see Chase Manhattan Automotive Fin. Corp. v Allstate Ins. Co., 272 AD2d 772, 774-775 [2000]).

In view of defendant’s reasonable excuse for the default, the minimal delay, defendant’s expeditious motion to compel acceptance of the answer, the absence of proof that the default was willful or any indication that plaintiff was prejudiced by the delay, and the existence of an arguably meritorious defense, we conclude that Supreme Court’s decision to grant defendant’s motion to extend the time to answer and to compel plaintiff to accept service was a proper exercise of its discretion (see Rickert v Chestara, 56 AD3d at 942; Acker v VanEpps, 45 AD3d 1104, 1105, 1106 [2007]).

Plaintiff’s remaining contentions, to the extent they are properly before us, have been considered and found to be unavailing.

Cardona, P.J., Rose, McCarthy and Garry, JJ., concur. Ordered that the order is affirmed, without costs.