—[*1] Joseph Henig, P.C., Bellmore, N.Y. (Marc Henig of counsel), for appellant.

Rossillo & Licata, LLP, Westbury, N.Y. (John J. Rossillo of counsel), for respondent.

In an action to recover no-fault medical payments under an insurance contract, the plaintiff, NYU-Hospital for Joint Diseases, as assignee of Gudrun Cancian, appeals from an order of the Supreme Court, Nassau County (McCarty III, J.), entered September 3, 2009, which denied its motion for summary judgment on the complaint.

Ordered that the order is affirmed, with costs.

On August 2, 2008, Gudrun Cancian was hospitalized at NYU-Hospital for Joint Diseases (hereinafter the hospital) after being injured in an automobile accident. She had been driving a vehicle insured by the defendant, Esurance Insurance Company (hereinafter Esurance). On September 5, 2008, the hospital, as Cancian’s assignee, mailed, among other things, an NF-5 form to Esurance, seeking payment of Cancian’s hospital bill. Esurance issued a denial of claim, which incorrectly stated the amount of the claim and the amount in dispute. Esurance denied the claim, inter alia, because Cancian allegedly was intoxicated at the time of the accident.

The hospital then commenced this action seeking payment of its bill, and moved for summary judgment on the complaint arguing, among other things, that the denial of claim was untimely, fatally defective for the above-mentioned mistakes, and that Esurance’s defense that Cancian was intoxicated was unsupported by the evidence.

“A proper denial of [a] claim [for no-fault benefits] must include the information called for in the prescribed denial of claim form (see 11 NYCRR 65-3.4 [c] [11]) and must ‘promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated’ ” (St. Barnabas Hosp. v Allstate Ins. Co., 66 AD3d 996, 996 [2009], quoting Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664 [2004]). A timely denial of a no-fault insurance medical claim alone does not, however, avoid preclusion where the “denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law” (Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d at 665).

Here, the hospital established its prima facie entitlement to judgment as a matter of law [*2]based on the untimeliness of the denial of claim. It submitted evidentiary proof that the prescribed statutory billing forms were mailed and received, and that payment of no-fault benefits was overdue (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750, 752 [2007]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]).

In opposition to the motion, however, Esurance raised a triable issue of fact as to whether the denial of claim was timely issued by submitting the affidavit of an employee with knowledge of its “standard office practices or procedures designed to ensure that items were properly addressed and mailed” (St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d at 1124), wherein he attested that a denial of claim was timely issued to the hospital. We note that while the denial of claim contained errors, they were not significant by themselves, and did not pose any possibility of confusion or prejudice to the hospital under the circumstances; thus, the denial was not rendered a nullity (see St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733, 734 [2010]; see also Westchester Med. Ctr. v Government Empls. Ins. Co., 77 AD3d 737, 738 [2010]).

Further, Esurance raised a triable issue of fact as to whether Cancian was “injured as a result of operating a motor vehicle while in an intoxicated condition” (Insurance Law § 5103 [b] [2]). Contrary to the hospital’s contention, the personal observations of the police officer present at the scene of the accident as recorded in the police accident report were properly considered by the Supreme Court under the business record exception to the hearsay rule (see CPLR 4518 [a]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d at 753).

Accordingly, the Supreme Court properly denied the hospital’s motion for summary judgment on the complaint. Prudenti, P.J., Angiolillo, Dickerson and Roman, JJ., concur.

—[*1] Jaffe & Koumourdas, LLP, New York, N.Y. (Thomas Torto and Jason Levine of counsel), for appellant.

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

In an action to recover no-fault benefits under an insurance contract, the defendant appeals from a judgment of the Supreme Court, Nassau County (Lally, J.), entered May 20, 2010, which, upon an order of the same court entered May 7, 2010, 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 total sum of $22,446.23.

Ordered that the judgment is affirmed, with costs.

The plaintiff established its prima facie entitlement to judgment as a matter of law by submitting, among other things, the requisite billing forms, an affidavit from its third-party biller, the certified mail receipt, and the signed return-receipt card referencing the patient and the forms, which demonstrated that the plaintiff mailed the necessary billing documents to the defendant, that the defendant received them, and that the payment of no-fault benefits was overdue (see New York Hosp. Med. Ctr. of Queens v Country Wide Ins. Co., 82 AD3d 723 [2011]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903, 904 [2007]; Westchester Med. Ctr. v Safeco Ins. Co. of Am., 40 AD3d 984 [2007]; New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]). In opposition, the defendant failed to raise a triable issue of fact as to whether it timely and effectively denied the plaintiff’s claim (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). “A proper denial of claim must include the information called for in the prescribed denial of claim form” (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005]; see 11 NYCRR 65-3.4 [c] [11]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664 [2004]). Here, even assuming that the denial of claim form issued by the defendant was timely and was properly mailed to the plaintiff, the form “was fatally defective in that it omitted numerous items of requested information, and thus was incomplete” (Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d at 565; see Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d 929 [2011]; compare St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733 [2010]). The denial also incorrectly listed Raquel Uviles as the applicant for benefits instead of the plaintiff (see St. Vincent’s Hosp. & Med. Ctr. v New Jersey Mfrs. Ins. Co., 82 AD3d 871 [2011]; see also Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 [*2]AD3d at 565). Accordingly, even if the denial was timely mailed, it was fatally defective (see St. Vincent’s Hosp. & Med. Ctr. v New Jersey Mfrs. Ins. Co., 82 AD3d at 871; Westchester Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 81 AD3d at 929; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d at 565).

For the same reasons, the defendant, in support of its cross motion for summary judgment dismissing the complaint, failed to make a prima facie showing that it timely denied the claim.

The defendant’s contention that the action should be dismissed as premature is improperly raised for the first time on appeal, and therefore is not properly before this Court (see Matter of Panetta v Carroll, 62 AD3d 1010 [2009]; KPSD Mineola, Inc. v Jahn, 57 AD3d 853, 854 [2008]). Contrary to the defendant’s contention, it does not present a pure question of law appearing on the face of the record which could not have been avoided if raised at the proper juncture (see Matter of Panetta v Carroll, 62 AD3d at 1010; KPSD Mineola, Inc. v Jahn, 57 AD3d at 854). Accordingly, this argument may not be reached for the first time on appeal.

The parties’ remaining contentions are without merit or need not be reached in light of our determination. Covello, J.P., Eng, Chambers and Miller, JJ., concur.

—[*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 benefits under a contract of insurance, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), entered October 1, 2010, as denied the motion of the plaintiff New York Hospital Medical Center of Queens, as assignee of Merna Ishak, for summary judgment on the second cause of action.

Ordered that the appeal by the plaintiff Westchester Medical Center, as assignee of Chris Kang, is dismissed, without costs or disbursements, as that plaintiff is not aggrieved by the portion of the order appealed from (see CPLR 5511); and it is further,

Ordered that the order is affirmed insofar as appealed from by the plaintiff New York Hospital Medical Center of Queens, as assignee of Merna Ishak; and it is further,

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

The plaintiff New York Hospital Medical Center of Queens, as assignee of Merna Ishak (hereinafter the plaintiff), established, prima facie, its entitlement to judgment as a matter of law on the second cause of action by demonstrating that the necessary billing forms were mailed to and received by the defendant and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Wyckoff Hgts. Med. Ctr. v Country-Wide Ins. Co., 71 AD3d 1009, 1010 [2010], lv granted 15 NY3d 709 [2010]; New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729, 730 [2007]). However, in opposition, the defendant raised a triable issue of fact as to whether the plaintiff fully complied with the defendant’s demand for verification (see St. Barnabas Hosp. v American Tr. Ins. Co., 57 AD3d 517, 518 [2008]; Westchester Med. Ctr. v Allstate Ins. Co., 53 AD3d 481 [2008]; Mount Sinai Hosp. v Allstate Ins. Co., 25 AD3d 673, 674 [2006]). The defendant was not obligated to pay or deny the claim until all demanded verification was provided by the plaintiff (see St. Barnabas Hosp. v American Tr. Ins. Co., 57 AD3d at 518). Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment on the second cause of action. Dillon, J.P., Covello, Eng and Chambers, JJ., concur.

—[*1] Baxter Smith & Shapiro, P.C., West Seneca (Lauren E. Dillon of counsel), for petitioner-appellant.

Louden Law Firm, P.C., Malta (Michelle Murphy-Louden of counsel), for respondent-respondent Patricia Armitage.

Appeal from an order of the Supreme Court, Erie County (Rose H. Sconiers, J.), entered February 10, 2010. The order denied the petition for a stay of arbitration.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner appeals from an order denying its petition seeking a permanent stay of arbitration. Respondent sought arbitration following petitioner’s denial of her claim for no-fault insurance benefits. The propriety of the denial of benefits is a “dispute involving the insurer’s liability to pay first party benefits” (Insurance Law § 5106 [b]), and we therefore conclude that Supreme Court properly refused to grant a permanent stay of arbitration (see generally Ryder Truck Lines v Maiorano, 44 NY2d 364, 368-369 [1978]). Petitioner further contends that the issue whether the offset for workers’ compensation benefits exceeds the monthly limit of first party benefits is not a matter for arbitration. We reject that contention (see Insurance Law § 5102 [a] [2]; see generally § 5106 [b]; Matter of Johnson v Buffalo & Erie County Private Indus. Council, 84 NY2d 13, 18-19 [1994]; Matter of Cady [Aetna Life & Cas. Co.], 96 AD2d 967 [1983], affd 61 NY2d 594 [1984]). Finally, we reject petitioner’s contention that, by refusing to grant a permanent stay of arbitration, the court denied petitioner its right to seek a loss-transfer claim from additional proposed respondents (see generally Matter of Liberty Mut. Ins. Co. [Hanover Ins. Co.], 307 AD2d 40, 42-43 [2003]). Present—Scudder, P.J., Fahey, Carni, Green and Gorski, JJ.

—[*1] Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Charles W. Benton of counsel), for appellant. Joseph Henig, P.C., Bellmore, N.Y., for respondent.

In an action to recover no-fault medical benefits under an insurance contract, the defendant appeals from an order of the Supreme Court, Nassau County (Martin, J.), entered October 28, 2009, which denied its motion pursuant to CPLR 5015 (a) to modify a judgment of the same court dated April 30, 2009, which, upon an order granting the plaintiff’s motion for summary judgment on the complaint, was in favor or the plaintiff and against it in the principal sum of $416,039.42.

Ordered that the order entered October 28, 2009, is affirmed, with costs.

The plaintiff hospital, as assignee of Bartolo Reyes, was awarded judgment against the defendant in the principal sum of $416,039.42, in this action to recover no-fault medical benefits under a contract of insurance entered into between the plaintiff’s assignee and the defendant. The defendant thereafter moved to modify the judgment pursuant to CPLR 5015 (a), belatedly asserting that the judgment exceeded the coverage limit of the subject policy due, in part, to payments previously made under the policy to other health care providers. In the order appealed from, the Supreme Court properly denied the defendant’s motion to modify the judgment.

The defendant failed to specify on which of the five subdivisions of CPLR 5015 (a) its motion was based, much less establish its entitlement to relief on any of the enumerated grounds. To the extent that the defendant sought modification pursuant to CPLR 5015 (a) (2) based upon “newly-discovered evidence,” the defendant failed to demonstrate that the evidence offered in support of the motion, i.e., an affidavit of an employee setting forth the policy limits and the amount of benefits paid for alleged prior claims, “was not available at the time of the prejudgment proceedings” (Jonas v Jonas, 4 AD3d 336, 336 [2004]; see Sicurelli v Sicurelli, 73 AD3d 735 [2010]).

Moreover, although courts possess inherent discretionary power to grant relief from a judgment or order in the interest of justice, this “extraordinary relief” is not appropriate under the circumstances presented (Jakobleff v Jakobleff, 108 AD2d 725, 726-727 [1985]; see Selinger v Selinger, 250 AD2d 752 [1998]). The plaintiff previously moved for summary judgment on the complaint, seeking a certain amount of benefits, in accordance with the no-fault billing statement sent to the defendant, and [*2]this Court reversed the denial of that motion and granted the plaintiff’s motion for summary judgment on the complaint (see Westchester Med. Ctr. v Lincoln Gen. Ins. Co., 60 AD3d 1045 [2009]). Only after the plaintiff obtained, upon this Court’s order, a judgment from the Clerk of the Supreme Court, Nassau County, representing, inter alia, the amount of benefits sought in the complaint, did the defendant raise the issue of exhaustion of the policy limits. Under these circumstances, modification of the judgment in the interest of justice is not warranted.

The parties’ remaining contentions are without merit. Skelos, J.P., Balkin, Austin and Sgroi, JJ., concur.

Motion by the respondent to dismiss an appeal from an order of the Supreme Court, Nassau County (Martin, J.), entered October 28, 2009, on the ground that the appeal is frivolous, and to impose a sanction upon the appellant and for an award of an attorney’s fee. By decision and order on motion of this Court dated March 19, 2010, the motion was held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion, the papers filed in opposition or relation thereto, and upon the argument of the appeal, it is

Ordered that the motion is denied. Skelos, J.P., Balkin, Austin and Sgroi, JJ., concur.

—[*1] Israel, Israel & Purdy, LLP, Great Neck (William M. Purdy of counsel), for appellants.

Rubin, Fiorella & Friedman LLP, New York (Joseph R. Federici, Jr. of counsel), for respondent.

Order, Supreme Court, New York County (Jane S. Solomon, J.), entered March 1, 2010, which denied defendants-appellants’ motion for summary judgment dismissing the complaint, granted plaintiff’s cross motion for summary judgment on the complaint, and declared that plaintiff does not owe coverage for the no-fault claims allegedly assigned to defendants, unanimously affirmed, without costs.

The motion court properly determined that plaintiff insurer may retroactively deny claims on the basis of defendants’ assignors’ failure to appear for independent medical examinations (IMEs) requested by plaintiff, even though plaintiff initially denied the claims on the ground of lack of medical necessity (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721-722 [2006]). The failure to appear for IMEs requested by the insurer “when, and as often as, [it] may reasonably require” (Insurance Department Regulations [11 NYCRR] § 65-1.1) is a breach of a condition precedent to coverage under the no-fault policy, and therefore fits squarely within the exception to the preclusion doctrine, as set forth in Central Gen. Hosp. v Chubb Group of Ins. Cos. (90 NY2d 195 [1997]). Accordingly, when defendants’ assignors failed to appear for the requested IMEs, 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]; Stephen Fogel Psychological, 35 AD3d at 721-722).

It is of no moment that the retroactive denials premised on failure to attend IMEs were embodied in blanket denial forms, or that they were issued based on failure to attend IMEs in a different medical speciality from that which underlies the claims at issue. A denial premised on breach of a condition precedent to coverage voids the policy ab initio and, in such case, the insurer cannot be precluded from asserting a defense premised on no coverage (see Chubb, 90 NY2d at 199).

There is likewise no merit to defendants’ contention that the IME request notices were [*2]invalid. Plaintiff satisfied its prima facie burden on summary judgment of establishing that it requested IMEs in accordance with the procedures and time frames set forth in the no-fault implementing regulations, and that defendants’ assignors did not appear. In opposition, defendants failed to raise an issue of fact that the requests were unreasonable (see generally Celtic Med. P.C. v New York Cent. Mut. Fire Ins. Co., 15 Misc 3d 13, 14-15 [2007]; A.B. Med. Servs. PLLC v USAA Gen. Indem. Co., 9 Misc 3d 19, 21 [2005]).

Defendants’ argument that plaintiff was required to demonstrate that the assignors’ failure to appear for the IMEs was willful is unpreserved and, in any event, without merit. The doctrine of willfulness, as addressed in Thrasher v United States Liab. Ins. Co. (19 NY2d 159 [1967]), applies in the context of liability policies, and has no application in the no-fault context, where the eligible injured party has full control over the requirements and conditions necessary to obtain coverage (cf. id. at 168).

Defendants’ argument that all IMEs must be conducted by physicians is unavailing. Although Insurance Department Regulations (11 NYCRR) § 65-1.1 (d) states that “[t]he eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the [insurer], when, and as often as, the [insurer] may reasonably require,” the regulations permit reimbursement for medically necessary treatment services that are rendered by nonphysicians, such as chiropractors and acupuncturists, as well (see Five Boro Psychological Servs., P.C. v AutoOne Ins. Co., 22 Misc 3d 978, 979-980 [2008]). We have considered defendants’ remaining contentions and find them unavailing. Concur—Andrias, J.P., Saxe, Friedman, Moskowitz and Richter, JJ. [Prior Case History: 2010 NY Slip Op 31936(U).]

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

Litchfield Cavo LLP, New York, N.Y. (Mark A. Everett of counsel), for respondent.

In an action to recover no-fault medical payments, the plaintiff, St. Vincent’s Hospital & Medical Center, as assignee of Tula Huillca, appeals from an order of the Supreme Court, Nassau County (Phelan, J.), entered April 23, 2010, which denied its motion for summary judgment on the complaint and granted the defendant’s cross motion for summary judgment dismissing the complaint on the ground that the claim was untimely.

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

“A proper denial of [a] claim [for no-fault benefits] must include the information called for in the prescribed denial of claim form (see 11 NYCRR 65-3.4 [c] [11]) and must ‘promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated’ ” (Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664 [2004], quoting General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 [1979]). However, a timely denial of a no-fault insurance medical claim alone does not avoid precluding an insurer from disclaiming or denying liability where the denial is factually insufficient, conclusory, vague, or otherwise involves a defense which has no merit as a matter of law (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005]).

The plaintiff, St. Vincent’s Hospital & Medical Center, as assignee of Tula Huillca, demonstrated its prima facie entitlement to judgment as a matter of law. While the defendant insurer timely issued two denials of claim within 30 days of its receipt of the completed hospital facility forms (NYS form N-F 5), those denials of claim, which incorrectly stated the amount of the bill and the amount in dispute, and incorrectly listed Tula Huillca as the applicant for benefits instead of the plaintiff, were fatally defective (see St. Barnabas Hosp. v Allstate Ins. Co., 66 AD3d 996, 996-997 [2009]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d at 565). In opposition, the defendant failed to raise a triable issue of fact.

Accordingly, the Supreme Court should have granted the plaintiff’s motion for summary [*2]judgment on the complaint, and denied the defendant’s cross motion for summary judgment dismissing the complaint. Dillon, J.P., Dickerson, Hall and Roman, JJ., concur.

Motion by the respondent on an appeal from an order of the Supreme Court, Nassau County, entered April 23, 2010, to strike Point I of the appellant’s reply brief on the ground, inter alia, that it improperly raises issues for the first time on appeal. Cross motion by the appellant to strike lines 11 through 19 of page 3 of the respondent’s brief on the ground that those lines refer to matter dehors the record. By decision and order on motion of this Court dated December 6, 2010, the motion and cross motion were held in abeyance and referred to the panel of Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and cross motion, the papers filed in opposition thereto, and upon the argument of the appeal, it is

Ordered that the motion is granted and Point I of the appellant’s reply brief is deemed stricken and has not been considered in the determination of the appeal; and it is further,

Ordered that the cross motion is denied. Dillon, J.P., Dickerson, Hall and Roman, JJ., concur.

—[*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 assigned first-party no-fault benefits for medical services rendered, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Murphy, J.), entered July 14, 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 one bill of costs payable to the plaintiff New York Hospital Medical Center of Queens, and that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action is granted.

The plaintiffs established their prima facie entitlement to judgment as a matter of law on the first cause of action by submitting, inter alia, the requisite billing forms, the affidavits from its third-party biller, the certified mail receipts, and the signed return-receipt card referencing the patient and the forms, which demonstrated that the plaintiff New York Hospital Medical Center of Queens (hereinafter the plaintiff) mailed the necessary billing documents to the defendant, that the defendant received them, and that the payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Westchester Med. Ctr. v GMAC Ins. Co. Online, Inc., 80 AD3d 603 [2011]; Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676 [2007]; New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729, 730 [2007]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 34 AD3d 532 [2006], affd 9 NY3d 312 [2007]).

In opposition, the defendant failed to raise a triable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The defendant’s verification requests, dated April 22, 2008, and May 22, 2008, respectively, requested “Rev. 01/04 NF5 & Assignment of Benefit Forms signed (No Stamps).” The plaintiff responded by providing exactly what was requested of it. The defendant cannot now complain that the NF5 or the assignment of benefits forms provided by the plaintiff were “outdated,” as its verification requests only sought the January 2004 version of the NF5 form and its accompanying assignment. Contrary to the Supreme Court’s conclusion, the affidavit of the defendant’s representative was insufficient to raise a triable issue of fact, as the plaintiff’s documented responses demonstrate that it [*2]complied with the defendant’s verification requests.

The defendant’s remaining contentions are without merit.

Accordingly, the Supreme Court should have granted that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action. Dillon, J.P., Covello, Florio and Hall, JJ., concur.

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

Lawrence N. Rogak, LLC, Oceanside, N.Y. (David A. Gierasch 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 (Parga, J.), dated August 3, 2010, which denied its motion for summary judgment on the complaint and granted the defendant’s cross motion for summary judgment dismissing the complaint.

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

The plaintiff made a prima facie showing that it was entitled to judgment as a matter of law on its complaint 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 Lincoln Gen. Ins. Co., 60 AD3d 1045, 1045-1046 [2009]; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014, 1017 [2008]; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019, 1020 [2007]).

In opposition to the plaintiff’s motion, the defendant failed to raise a triable issue of fact as to whether it timely denied the plaintiff’s claim. The defendant’s denial of claim form NF-10 dated December 18, 2009, was fatally defective because it omitted several material items of information (see St. Vincent’s Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123, 1124 [2008]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564, 565 [2005]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2004]). The defendant also failed to submit sufficient evidence that it mailed the second denial of claim form NF-10 bearing the date December 31, 2009, to establish compliance with the 30-day period (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]). Thus, the defendant also failed to make a prima facie showing that it timely denied the claim in support of its cross motion for summary judgment [*2]dismissing the complaint.

Failure to establish timely denial of the claim results in preclusion of the defense that the intoxication of the insured was a contributing cause of the accident and subject to exclusion under the policy (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286 [1997]). Accordingly, the Supreme Court should have granted the plaintiff’s motion for summary judgment on the complaint and should have denied the defendant’s cross motion for summary judgment dismissing the complaint. Angiolillo, J.P., Belen, Chambers and Roman, JJ., concur.

—[*1] Law Offices of Teresa M. Spina, Woodbury (Peter J. Molesso of counsel), for appellant. Steven J. Neuwirth, Garden City, for respondent.

Order of the Appellate Term of the Supreme Court in the First Judicial Department, entered June 24, 2009, which affirmed an order of the Civil Court of the City of New York, Bronx County (Julia I. Rodriguez, J.), entered on or about February 15, 2007, finding the issue of which insurer is the primary insurer must be submitted to arbitration, unanimously affirmed, with costs.

Insurance Law § 5105 (b) requires that mandatory arbitration be used to resolve all disputes between insurers as to their responsibility for the payment of first-party benefits. 11 NYCRR 65-3.12 (b) provides that “[i]f a dispute regarding priority of payment arises among insurers who otherwise are liable for the payment of first-party benefits, then the first insurer to whom notice of claim is given . . . shall be responsible for payment to such person. Any such dispute shall be resolved in accordance with the arbitration procedures established pursuant to section 5105 of the Insurance Law and section 65-4.11 of this Part.”

Defendant argues that its denial of benefits raised an issue of coverage, rather than of payment, because it was not “otherwise . . . liable” for the payment of first-party benefits. However, 11 NYCRR 65-4.11 (a) (6) provides that “any controversy between insurers involving the responsibility or the obligation to pay first-party benefits (i.e., priority [of] payment or sources of payment as provided in section 65-3.12 of this Part) is not considered a coverage question and must be submitted to mandatory arbitration under this section.” Thus, as “the first insurer to whom notice of claim [was] given” (11 NYCRR 65-3.12 [b]), defendant was responsible or obligated to pay the no-fault benefits for the health services provided by plaintiff, irrespective of any issues of priority or source of payment. By denying plaintiff’s claim on the stated ground that no-fault benefits were payable by another insurer (Fidelity and Guaranty Insurance Co.), defendant raised an issue as to which insurer was obligated to pay first-party [*2]benefits, which “[c]learly . . . is an inter-company dispute subject to mandatory arbitration” (see Paramount Ins. Co. v Miccio, 169 AD2d 761, 763 [1991], lv denied 78 NY2d 851 [1991]; Matter of Pacific Ins. Co. v State Farm Mut. Auto. Ins. Co., 150 AD2d 455, 456 [1989]). Concur—Saxe, J.P., Friedman, DeGrasse, Freedman and Abdus-Salaam, JJ. [Prior Case History: 24 Misc 3d 43.]