—[*1] Craig Meyerson, Latham, N.Y., for appellants.

Stern & Montana, LLP, New York, N.Y. (Richard Montana of counsel), for respondent.

In an action to recover no-fault medical payments under certain contracts of insurance, the plaintiffs appeal, as limited by their brief, (1) from so much of an order of the Supreme Court, Westchester County (Bellantoni, J.), entered January 16, 2008, as denied their motion for summary judgment on the complaint and granted those branches of the defendant’s cross motion which were for summary judgment dismissing the first, third, fourth, fifth, sixth, eighth, ninth, tenth, eleventh, twelfth, fourteenth, fifteenth, and sixteenth causes of action, and (2) from so much of an order of the same court entered July 2, 2008, as, upon reargument, adhered to the original determination in the order entered January 16, 2008.

Ordered that appeal from the order entered January 16, 2008, is dismissed, as that order was superseded by the order entered July 2, 2008, made upon reargument; and it is further,

Ordered that the order entered July 2, 2008, is modified, on the law, by deleting the provisions thereof, upon reargument, adhering to the original determination in the order entered January 16, 2008, granting those branches of the defendant’s cross motion which were for summary judgment dismissing the first, third, fourth, fifth, sixth, eighth, ninth, tenth, eleventh, twelfth, fourteenth, fifteenth, and sixteenth causes of action, and substituting therefor a provision, upon reargument, vacating so much of the order entered January 16, 2008, as granted those branches of the cross motion; as so modified, the order entered July 2, 2008, is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Westchester County, for a new determination of those branches of the cross motion following a prompt application to the Workers’ Compensation Board to determine the parties’ rights under the Workers’ Compensation Law.

The plaintiffs, as assignees of no-fault benefits (see Insurance Law § 5101 et seq.), brought this action to recover for health services rendered to the beneficiaries of the defendant’s no-fault insurance contracts. Each assignor received medical treatment from the plaintiffs following separate automobile accidents. The complaint contained 17 causes of action. The plaintiffs moved for summary judgment on the complaint and the defendant cross-moved, inter alia, for summary judgment dismissing the complaint. The Supreme Court, inter alia, denied the plaintiffs’ motion, and granted those branches of the defendant’s cross motion which were to dismiss the first, third, fourth, fifth, sixth, eighth, ninth, tenth, eleventh, twelfth, fourteenth, fifteenth, and sixteenth causes [*2]of action. The court concluded that, because the assignors in the aforementioned causes of action were injured during the course of their respective employment, the plaintiffs were barred from recovery pursuant to Workers’ Compensation Law § 11. The plaintiffs moved, and the defendant cross-moved, for leave to reargue. Upon reargument, the court adhered to its original determination. We modify.

There has been no determination by the Workers’ Compensation Board as to whether the assignors are entitled to Workers’ Compensation benefits for their injuries (see Nunes v Window Network, LLC, 54 AD3d 834, 835 [2008]; cf. Thompson v Grumman Aerospace Corp., 78 NY2d 553 [1991]). The Workers’ Compensation Board has primary jurisdiction to determine factual issues concerning coverage under the Workers’ Compensation Law (see Botwinick v Ogden, 59 NY2d 909, 911 [1983]; Bastidas v Epic Realty, LLC, 58 AD3d 776 [2009]; Santigate v Linsalata, 304 AD2d 639, 640 [2003]). Where “a plaintiff fails to litigate that issue before the Board, ‘the court should not express an opinion as to the availability of compensation but remit the matter to the Board’ ” (O’Hurley-Pitts v Diocese of Rockville Ctr., 57 AD3d 633, 634 [2008], quoting Liss v Trans Auto Sys., 68 NY2d 15, 21 [1986]). Accordingly, in considering the defendant’s cross motion, the Supreme Court should not have entertained the defendant’s contention that the plaintiffs were barred from recovery pursuant to Workers’ Compensation Law § 11. Those claims must be referred to the Workers’ Compensation Board for a determination as to whether the plaintiffs have a valid cause of action to recover no-fault benefits, or whether they are relegated to benefits under the Workers’ Compensation Law (cf. O’Hurley-Pitts v Diocese of Rockville Ctr., 57 AD3d at 634; Nunes v Window Network, LLC, 54 AD3d at 835).

The Supreme Court properly denied the plaintiffs’ motion for summary judgment on the complaint, as the plaintiffs failed to demonstrate, prima facie, their entitlement to judgment as a matter of law.

The plaintiffs’ remaining contentions either are without merit or have been rendered academic in light of our determination. Skelos, J.P., Santucci, Balkin and Leventhal, JJ., concur.

—[*1] Picciano & Scahill, P.C., Westbury, N.Y. (Jason Tenenbaum of counsel), for appellants.

Votto & Cassata, LLP, Staten Island, N.Y. (Christopher J. Albee of counsel), for respondent.

In an action to recover damages for slander per se, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Balter, J.), dated November 19, 2008, as denied that branch of their motion which was pursuant to CPLR 3211 (a) (7) to dismiss the complaint.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss the complaint is granted.

The plaintiff alleged in the complaint that the defendants committed slander per se when they reported to the police that the plaintiff had filed a fraudulent claim with them for no-fault medical benefits for his son. However, the complaint failed to comply with CPLR 3016 (a), which requires that a complaint sounding in defamation “set forth ‘the particular words complained of’ ” (Simpson v Cook Pony Farm Real Estate, Inc., 12 AD3d 496, 497 [2004], quoting CPLR 3016 [a]; see Fusco v Fusco, 36 AD3d 589 [2007]). Compliance with CPLR 3016 (a) is strictly enforced (see Abe’s Rooms, Inc. v Space Hunters, Inc., 38 AD3d 690 [2007]). Accordingly, that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action should have been granted. Spolzino, J.P., Angiolillo, Leventhal and Lott, JJ., concur.

—[*1] Brown & Kelly, LLP, Buffalo (H. Ward Hamlin, Jr., of counsel), for respondent-appellant.

Gross, Shuman, Brizdle & Gilfillan, P.C., Buffalo (David H. Elibol of counsel), for claimant-respondent.

Appeal from an order of the Supreme Court, Erie County (Christopher J. Burns, J.), entered November 20, 2008 in a proceeding pursuant to CPLR article 75. The order granted claimant’s motion and vacated an arbitration award.

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

Memorandum: Claimant was allegedly injured in an automobile accident and, following a hearing based on the denial by respondent, her insurer, of her request for no-fault benefits, the arbitrator awarded claimant the sum of $4,354.56. Claimant also sought supplementary uninsured motorists (SUM) benefits and, following a second hearing before a different arbitrator, the arbitrator denied her request for such benefits on the ground that her injuries were not caused by the accident. Claimant moved pursuant to CPLR article 75 to vacate or modify the SUM arbitration award contending, inter alia, that respondent was collaterally estopped from relitigating the issue of causation with respect to her injuries. Respondent, on the other hand, sought confirmation of the SUM arbitrator’s award. We agree with respondent that Supreme Court erred in granting claimant’s motion. The fact that a prior arbitration award is inconsistent with a subsequent award is not an enumerated ground in either subdivision (b) or (c) of CPLR 7511 for vacating or modifying the subsequent award (see Matter of City School Dist. of City of Tonawanda v Tonawanda Educ. Assn., 63 NY2d 846, 848 [1984]). As the court properly recognized, “[i]t was within the [SUM] arbitrator’s authority to determine the preclusive effect of the prior arbitration on the instant arbitration” (Matter of Progressive N. Ins. Co. v Sentry Ins. A Mut. Co., 51 AD3d 800, 801 [2008]). The court erred in noting, however, that it was unable to determine whether the SUM arbitrator even considered claimant’s contention with respect to collateral estoppel. Arbitrators are not required to provide reasons for their decisions (see Matter of Solow Bldg. Co. v Morgan Guar. Trust Co. of N.Y., 6 AD3d 356, 356-357 [2004], lv denied 3 NY3d 605 [2004], cert denied 543 US 1148 [2005]; Matter of Guetta [Raxon Fabrics Corp.], 123 AD2d 40, 41 [1987]), and thus the SUM arbitrator was not required to state that he had considered that contention. [*2]

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

Peradotto and Gorski, JJ. (dissenting). We respectfully dissent and would affirm. Although collateral estoppel “is not a basis on which [Supreme C]ourt may, under CPLR 7511, vacate an arbitration award” (Matter of Globus Coffee, LLC v SJN, Inc., 47 AD3d 713, 714 [2008]; see Matter of City School Dist. of City of Tonawanda v Tonawanda Educ. Assn., 63 NY2d 846, 848 [1984]), vacatur is permitted where the award ” ‘violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power’ ” (Matter of Mays-Carr [State Farm Ins. Co.], 43 AD3d 1439, 1439 [2007], quoting Matter of New York City Tr. Auth. v Transport Workers’ Union of Am., Local 100, AFL-CIO, 6 NY3d 332, 336 [2005]; see generally CPLR 7511 [b] [1] [iii]). In our view, the arbitrator who issued the award with respect to supplementary uninsured motorists (SUM) benefits exceeded his power by disregarding the preclusive effect of a prior arbitration award and instead issuing a different determination with respect to causation, involving the same parties and based upon the same facts (see Matter of American Honda Motor Co. v Dennis, 259 AD2d 613 [1999]; Motor Veh. Acc. Indem. Corp. v Travelers Ins. Co., 246 AD2d 420, 422 [1998]).

We agree with the majority that it generally is within the arbitrator’s discretion to determine the preclusive effect of a prior arbitration award on the instant arbitration (see City School Dist. of City of Tonawanda, 63 NY2d at 848). In a number of the cases setting forth that general proposition, however, there are factual issues whether the prior award should be given preclusive effect, either because the parties are not identical (see e.g. id., 63 NY2d at 847-848; Board of Educ. of Patchogue-Medford Union Free School Dist. v Patchogue-Medford Congress of Teachers, 48 NY2d 812, 813 [1979]), or it is not clear whether the disputed issue was resolved in the prior proceeding (see e.g. Globus Coffee, LLC, 47 AD3d at 714; Matter of Town of Newburgh v Civil Serv. Empls. Assn., 272 AD2d 405 [2000]; Matter of Medina Power Co. [Small Power Producers], 241 AD2d 915 [1997]). Here, there are no such factual issues. The SUM arbitrator was thus barred from relitigating the issue of causation between the identical parties, inasmuch as it was ” ‘actually contested and therefore determined by the [prior] award’ ” (Medina Power Co., 241 AD2d 915 [1997]).

Further, we note that “strong public policy considerations favor finality in the resolution of disputes of all kinds to assure that parties will not be vexed by further litigation” (Merrill Lynch, Pierce, Fenner & Smith v Benjamin, 1 AD3d 39, 40 [2003]), and that “[t]he object of arbitration is to achieve a final disposition of differences between parties in an easier, more expeditious and less expensive manner” (Matter of Maye [Bluestein], 40 NY2d 113, 117-118 [1976]). Just as a court may not redetermine an issue conclusively decided in a prior arbitration proceeding between the same parties (see Clemens v Apple, 65 NY2d 746, 748-749 [1985]), despite having the same discretion as an arbitrator with respect to collateral estoppel determinations (see Rembrandt Indus. v Hodges Intl., 38 NY2d 502, 504 [1976]), an arbitrator is similarly precluded from redetermining an issue previously settled between the parties pursuant to an arbitration award (see American Honda Motor Co., 259 AD2d 613 [1999]). To conclude otherwise would “defeat[ ] . . . two of arbitration’s primary virtues, speed and finality” (Matter of Weinrott [Carp], 32 NY2d 190, 198 [1973]), and would instead encourage parties to seek that finality by way of the court system. Present—Smith, J.P., Centra, Peradotto, Green and Gorski, JJ.

—[*1] Basch & Keegan, L.L.P., Kingston (Eli Basch of counsel), for appellants.

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

Kane, J. Appeal from an order of the Supreme Court (Teresi, J.), entered January 7, 2009 in Greene County, which granted defendant’s motion for summary judgment dismissing the complaint.

After plaintiff Mary Proper (hereinafter plaintiff) was involved in a motor vehicle accident, she applied for no-fault insurance benefits from defendant. Defendant paid for plaintiff’s medical treatment and lost wages. Plaintiff’s medical insurers, Medicare and Blue Cross and Blue Shield (hereinafter BCBS), also allegedly paid for some of her medical treatment. Plaintiffs commenced this action alleging that defendant breached its contract by failing to fully provide no-fault benefits. Defendant moved for summary judgment dismissing the complaint. Supreme Court granted the motion, prompting plaintiffs’ appeal.

Because plaintiffs failed to support their claim with admissible evidence that they suffered damages, Supreme Court properly dismissed the complaint. Failure to prove the essential element of damages is fatal to a cause of action for breach of contract (see Fellion v Darling, 14 AD3d 904, 907 [2005]; Orville v Newski, Inc., 155 AD2d 799, 800 [1989], lv dismissed 75 NY2d 946 [1990]). Here, plaintiff testified at her deposition that she had not personally paid any medical bills. While she asserts that BCBS paid $12,000 in medical bills and [*2]has asserted a lien against her recovery in a separate personal injury action against the driver of the other vehicle, the record does not contain any claim from BCBS to support these assertions. There are no bills or statements of the amount allegedly paid by BCBS or even proof that any such payments were actually made. As plaintiffs bear the burden of proving damages, and cannot meet that burden with pure speculation or bare assertions, the court correctly granted defendant’s motion for summary judgment dismissing the complaint (see Peak v Northway Travel Trailers, Inc., 27 AD3d 927, 929 [2006]; New Horizons Amusement Enters. v Zullo, 301 AD2d 825, 827 [2003]; Seaman v Berman, 239 AD2d 738, 738-739 [1997]; see also Berley Indus. v City of New York, 45 NY2d 683, 687 [1978]).

Peters, J.P., Rose, Lahtinen and Kavanagh, JJ., concur. Ordered that the order is affirmed, with costs.

—[*1] Mura & Storm, PLLC, Buffalo (Roy A. Mura of counsel), for defendant-appellant.

Longstreet & Berry, LLP, Syracuse (Martha Berry of counsel), for plaintiff-respondent.

Appeal from an order of the Supreme Court, Oneida County (Samuel D. Hester, J.), entered January 11, 2008. The order, insofar as appealed from, denied the motion of defendant for summary judgment.

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

Memorandum: Plaintiff commenced this action seeking to recover supplemental uninsured/underinsured motorist (SUM) benefits under an automobile insurance policy issued to her by defendant. Under the SUM endorsement, plaintiff was required to give defendant notice of a claim “[a]s soon as practicable.” Plaintiff promptly notified defendant of the motor vehicle accident, which occurred on May 22, 2000, and she filed a claim for no-fault benefits on July 20, 2000. On April 7, 2003, plaintiff gave defendant notice of her claim under the SUM endorsement. Defendant disclaimed coverage on the ground that plaintiff failed to provide timely notice of the SUM claim.

We conclude that Supreme Court properly denied defendant’s motion for summary judgment dismissing the complaint. “[W]here an insured previously gives timely notice of the accident, the carrier must establish that it is prejudiced by a late notice of SUM claim before it may properly disclaim coverage” (Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468, 476 [2005]). Here, it is undisputed that plaintiff timely notified defendant of the accident and, shortly thereafter, filed a claim for no-fault benefits. Defendant failed to establish that it was prejudiced by plaintiff’s delay in providing notice of the SUM claim (see id. at 475-476). Present—Hurlbutt, J.P., Peradotto, Carni, Green and Pine, JJ.

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

Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Charles W. Benton 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 (Martin, J.), dated October 14, 2008, which denied its motion for summary judgment on the complaint.

Ordered that the order is reversed, on the law, with costs, and the motion is granted.

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 medical payments by submitting evidence that the prescribed statutory billing forms had been mailed and received, 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]; New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512, 513 [2006]; Nyack Hosp. v General Motors Acceptance Corp., 27 AD3d 96, 100 [2005]; New York & Presbyt. Hosp. v AIU Ins. Co., 20 AD3d 515, 516 [2005]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]). In opposition, the defendant failed to raise a triable issue of fact.

Contrary to the defendant’s contention, the two letters it sent to the plaintiff on March 31, 2008, and April 30, 2008, respectively, advising the plaintiff that the processing of its claim was being held pending an investigation of the loss, which included verifying the claimant’s involvement [*2]in the motor vehicle accident and conducting examinations under oath of any individuals with personal knowledge of the facts, did not serve to toll the 30-day statutory period (see 11 NYCRR 65-3.5 [a]; Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535, 536 [2005]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 17 [1999]; see also Ocean Diagnostic Imaging P.C. v Citiwide Auto Leasing, Inc., 8 Misc 3d 138[A], 2005 NY Slip Op 51314[U] [2005]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [2004]). We also reject the defendant’s contention that the 30-day statutory period was tolled pending the defendant’s submission of a no-fault application, as 11 NYCRR 65-3.5 (g) specifically requires an insurer to accept a completed hospital facility form (NYS Form N-F 5), as was submitted here, “[i]n lieu of a prescribed application for motor vehicle no-fault benefits” (see Nyack Hosp. v Encompass Ins. Co., 23 AD3d at 536).

The defendant also failed to raise a triable issue of fact, solely based on the hearsay statement of its investigator, as to whether the accident was covered by Workers’ Compensation benefits. Moreover, the defendant’s possible entitlement to offset any no-fault benefits it pays by any recovery pursuant to a Workers’ Compensation claim does not constitute a defense of lack of coverage, which is not subject to the requirement that there be timely service of the disclaimer (see 11 NYCRR 65-3.5 [a]; Fair Price Med. Supply Corp. v Travelers Indem. Co., 10 NY3d 556, 563 [2008]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 318 [2007]; cf. Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997] [question of fact as to whether injuries were sustained in a separate, work-related accident]). Where, as here, the defendant’s denial of liability also was based upon an alleged breach of a policy condition, to wit, the failure of the plaintiff’s assignor to appear at an examination under oath, such an alleged breach does not serve to vitiate the medical provider’s right to recover no fault benefits or to toll the 30-day statutory period (see Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 17 [1999]). Rather, such denial was subject to the preclusion remedy (see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199; Zappone v Home Ins. Co., 55 NY2d 131, 136-137 [1982]; cf. Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 279-280 [1997]). Skelos, J.P., Fisher, Santucci and Balkin, JJ., concur.

—[*1] Short & Billy, P.C., New York, N.Y. (Helene Jnane 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 contracts, the defendant appeals, as limited by its brief, from (1) so much of an order of the Supreme Court, Nassau County (McCormack, J.), dated January 21, 2008, as granted that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action asserted by the plaintiff Westchester Medical Center, as assignee of Daphne McPherson, and (2) so much of a judgment of the same court entered April 16, 2008, as, upon the order, is in favor of the plaintiff Westchester Medical Center, as assignee of Daphne McPherson, and against it in the principal sum of $6,993.96. The notice of appeal from the order is deemed also to be a notice of appeal from the judgment (see CPLR 5501 [c]).

Ordered that the appeal from the order dated January 21, 2008 is dismissed; and it is further,

Ordered that the judgment is reversed insofar as appealed from, on the law, that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action asserted by the plaintiff Westchester Medical Center, as assignee of Daphne McPherson, is denied, and the order dated January 21, 2008 is modified accordingly; and it is further,

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

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). [*2]The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

The plaintiff Westchester Medical Center (hereinafter WMC), among others, commenced this action to recover no-fault medical benefits allegedly owed its patient/assignor Daphne McPherson for injuries sustained by her in a motor vehicle accident involving an insured of the defendant American Transit Insurance Company. The plaintiffs moved for summary judgment on the first cause of action asserted by WMC, as assignee of McPherson, arguing that the defendant received a demand for payment of such benefits on February 20, 2007 and neither paid nor denied such benefits within 30 days. WMC asserted that the defendant did not deny benefits until April 5, 2007. Thus, WMC argued, the benefits were now “overdue” (see 11 NYCRR 65-3.8). In opposition, the defendant argued, inter alia, that its denial of benefits was timely as a result of the toll of its time within which to pay or deny a claim arising from its demand for additional verification of the claim. The Supreme Court, among other things, awarded WMC summary judgment on the first cause of action. We reverse the judgment entered upon the order insofar as appealed from.

The defendant does not dispute that it received a demand for no-fault benefits from WMC on February 20, 2007 and that it neither paid nor denied such benefits within 30 days thereof (see 11 NYCRR 65-3.8 [c]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750 [2007]). However, the defendant demonstrated, prima facie, that it made a timely request for additional verification of the claim, and that its denial of benefits was timely as measured from the receipt of additional verification which allegedly revealed that McPherson was entitled to workers’ compensation benefits for the underlying accident (see 11 NYCRR 65-3.5 [b]; 65-3.8 [b]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750 [2007]; Montefiore Med. Ctr. v Government Empls. Ins. Co., 34 AD3d 771 [2006]). Thus, that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action asserted by WMC, as assignee of McPherson, should have been denied.

We decline the defendant’s request, in effect, to search the record and award it summary judgment dismissing WMC’s cause of action and to refer the matter to the Workers’ Compensation Board for a determination as to whether McPherson is entitled to workers’ compensation benefits for the underlying accident (see generally O’Hurley-Pitts v Diocese of Rockville Ctr., 57 AD3d 633 [2008]; Catapane v Half Hollow Hills Cent. School Dist., 45 AD3d 517 [2007]). The defendant, inter alia, failed to proffer competent evidence in admissible form of the alleged facts giving rise to its contention that workers’ compensation benefits are available. Rivera, J.P., Spolzino, Ritter and Miller, JJ., concur. [See 19 Misc 3d 1104(A), 2008 NY Slip Op 50546(U).]

[*1]

Second Department, February 17, 2009

East Acupuncture, P.C. v Allstate Ins. Co., 15 Misc 3d 104, affirmed.

APPEARANCES OF COUNSEL

Gary Tsirelman, P.C., Brooklyn (Max Valerio of counsel), for appellant.

Saiber LLC, New York City (Agnes I. Rymer, David J. D’Aloia and McDonnell & Adels, P.C. [Martha S. Henley] of counsel), for respondent.

Andrew M. Cuomo, Attorney General, New York City (Benjamin N. Gutman and Peter Karanjia of counsel), amicus curiae, for Superintendent of Insurance of State of New York.

{**61 AD3d at 203} OPINION OF THE COURT

Balkin, J.

The principal issue on this appeal, which is a matter of conflicting decisions within our trial courts,^[FN1] is whether a toll on the accrual of statutory interest on overdue [*2]no-fault claims pursuant to 11 NYCRR 65-3.9 (c) applies to claims submitted to insurers by medical providers as assignees of policyholders, or is restricted to claims submitted directly by the policyholders themselves. We hold that the tolling regulation applies to both.

I.

The following facts are essentially undisputed. The plaintiff, East Acupuncture, P.C. (hereinafter East Acupuncture), a health care provider, treated several individuals injured in automobile{**61 AD3d at 204} accidents between July 20, 2000 and June 21, 2001 (hereinafter the injured persons), and received assignments of their no-fault benefits under automobile insurance policies issued by the defendant Allstate Ins. Co. (hereinafter Allstate). East Acupuncture, as an assignee, submitted claims for no-fault benefits to Allstate; in response, Allstate timely denied some claims, issued no denials for some claims, and untimely denied other claims.

As a result, by summons and verified complaint dated June 18, 2004, East Acupuncture, as the assignee of the injured persons, commenced the instant action against Allstate in the Civil Court of the City of New York, Kings County to recover the claimed no-fault benefits, alleging, in relevant part, that it timely submitted bills and claims to Allstate for the payment of such services, but that they remained unpaid. Contemporaneously therewith, by notice of motion dated July 19, 2004, East Acupuncture moved for summary judgment in its favor for the amount of the principal sums demanded in the complaint plus statutory interest, arguing that Allstate had failed to establish that it paid or denied East Acupuncture’s claims within the required 30 days under Insurance Law § 5106 (a).

While that motion was pending, East Acupuncture and Allstate engaged in negotiations and ultimately entered into a stipulation of settlement providing that East Acupuncture would receive: 80% of the outstanding principal of all the assigned no-fault claims for which it sought payment; 100% of interest, accrued from the date East Acupuncture filed its complaint, on claims that Allstate had timely denied; and 90% of interest, accrued from 30 days after Allstate received proof of claim, on claims that Allstate had not denied. Finally, for claims that Allstate had untimely denied, the stipulation entitled East Acupuncture to recover 100% of interest “beginning either from [30] days after insurer received the claim or the date [East Acupuncture]’s complaint was filed to be DETERMINED BY THE COURT.”

In their affirmations submitted to the Civil Court in support of and in opposition to East Acupuncture’s motion for summary judgment, East Acupuncture and Allstate disagreed as to whether the interest toll pursuant to 11 NYCRR 65-3.9 (c)^[FN2] applied to the no-fault claims of medical [*3]providers as assignees of{**61 AD3d at 205} policyholders (hereinafter provider/assignees), such as East Acupuncture, or was limited to the claims submitted by the injured persons directly. More pointedly, East Acupuncture sought interest from 30 days after the claims’ submission, while Allstate insisted that interest accrued only from the commencement date of the action. By order dated June 27, 2005, the Civil Court granted that branch of East Acupuncture’s motion which was for summary judgment awarding it interest on the untimely denied claims, with such interest accruing from 30 days after Allstate received proof of the claims. The Civil Court concluded that the interest toll pursuant to 11 NYCRR 65-3.9 (c) applied only to the claims of the injured persons, not to those of provider/assignees (see East Acupuncture, P.C. v Allstate Ins. Co., 8 Misc 3d 849, 851-852 [Civ Ct, Kings County 2005]).

Allstate appealed from that order to the Appellate Term of the Supreme Court for the Second, Eleventh and Thirteenth Judicial Districts. The parties reiterated their arguments below and were joined by the New York State Superintendent of Insurance (hereinafter the Superintendent), who was granted leave to file a brief and argue as amicus curiae.

Agreeing with Allstate and the Superintendent, the Appellate Term, by order dated January 3, 2007, reversed the order of the Civil Court and remitted the matter for a new calculation of interest on the untimely denied claims, with such interest accruing from the date East Acupuncture filed its complaint. The Appellate Term concluded that the interest toll pursuant to 11 NYCRR 65-3.9 (c) applied to the claims of both types of{**61 AD3d at 206} claimants, the injured persons and provider/assignees (see East Acupuncture, P.C. v Allstate Ins. Co., 15 Misc 3d 104 [App Term, 2d, 11th & 13th Jud Dists 2007]). The Appellate Term additionally noted that although the subject claims predated the no-fault regulations effective April 5, 2002 the regulations at issue had not been modified to any material extent (id. at 105 n).

By decision and order on motion dated August 28, 2007, this Court granted East Acupuncture’s motion for leave to appeal from the order of the Appellate Term. On its appeal, East Acupuncture maintains that the order of the Appellate Term should be reversed, inter alia, because the term “applicant,” as used in 11 NYCRR 65-3.9 (c), refers only to the injured persons, not to provider/assignees. For their part, Allstate and the Superintendent, as amicus curiae, argue that both types of no-fault claimants are subject to the interest toll under this regulation. [*4]

II.

By way of background, in 1973, the New York State Legislature enacted the Comprehensive Automobile Insurance Reparations Act (L 1973, ch 13; hereinafter the No-Fault Law)—presently codified in article 51 of the Insurance Law—supplanting common-law tort actions for most victims of automobile accidents with a system of no-fault insurance (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 281 [1997]; Walton v Lumbermens Mut. Cas. Co., 88 NY2d 211, 214 [1996]).

“Under the no-fault system, payments of benefits ‘shall be made as the loss is incurred’ (Insurance Law § 5106 [a]). The primary aims of this new system were to ensure prompt compensation for losses incurred by accident victims without regard to fault or negligence, to reduce the burden on the courts and to provide substantial premium savings to New York motorists” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 860 [2003]; see Governor’s Mem approving L 1973, ch 13, 1973 McKinney’s Session Laws of NY, at 2335).

In order to fulfill these goals, the Insurance Law provides that a claim for no-fault automobile insurance benefits is overdue “if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained” (Insurance Law{**61 AD3d at 207} § 5106 [a];^[FN3] see New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493 [2006]), and “[a]ll overdue payments shall bear interest at the rate of two percent per month” (Insurance Law § 5106 [a]). Building upon these precepts, the Superintendent has promulgated regulations implementing the No-Fault Law for the last 35 years, currently contained in 11 NYCRR part 65.^[FN4] More particularly, under 11 NYCRR 65-3.11 (a), an insurer shall pay benefits directly to the “applicant,” or, upon assignment by the applicant, “shall pay benefits directly to providers of health care services.” Pursuant to 11 NYCRR 65-3.8 (c), “[w]ithin 30 calendar days after proof of claim is received, the insurer shall either pay or deny the claim in whole or in part.” Under 11 NYCRR 65-3.8 (a) (1), “[n]o-fault benefits are overdue if not paid within 30 calendar days after the insurer receives proof of claim” (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d at 278; Cardinell v Allstate Ins. Co., 302 AD2d 772, 774 [2003]).

Relevant to the instant dispute, 11 NYCRR 65-3.9 governs the accrual of interest on overdue no-fault payments. Pursuant to 11 NYCRR 65-3.9 (a), “[a]ll overdue mandatory and additional personal injury protection benefits due an applicant or assignee shall bear interest at a rate of two [*5]percent per month” (see Hempstead Gen. Hosp. v Insurance Co. of N. Am., 208 AD2d 501 [1994]). However, 11 NYCRR 65-3.9 (c) provides that

“[i]f an applicant does not request arbitration or institute a lawsuit within 30 days after the receipt of a denial of claim form or payment of benefits calculated pursuant to Insurance Department regulations, interest shall not accumulate on the disputed claim or element of claim until such action{**61 AD3d at 208} is taken” (emphasis supplied), thereby providing a toll on the accrual of the statutory interest.

III.

The critical issue before this Court is whether the toll on the accrual of statutory interest on overdue no-fault claims pursuant to 11 NYCRR 65-3.9 (c) applies to claims submitted to insurers by provider/assignees (see 11 NYCRR 65-3.11 [a]), or is restricted to claims submitted directly by the injured persons. East Acupuncture contends that because 11 NYCRR 65-3.9 (a) uses the terms “applicant” and “assignee,” the omission of the term “assignee” in 11 NYCRR 65-3.9 (c) evidences that the interest toll applies only to claims submitted by the injured persons. In contrast, Allstate argues that, for interest tolling purposes, there is no reason to distinguish between claims submitted by provider/assignees and claims submitted by the injured persons because the term “applicant” is used in 11 NYCRR 65-3.9 (c) to refer generically to both provider/assignees and injured persons. In an amicus curiae brief, the Superintendent argues that the term “applicant,” as used in the no-fault regulations, encompasses provider/assignees and that this interpretation is consistent with prior case law and the expression of the Superintendent’s intent.

In matters of statutory and regulatory interpretation, “legislative intent is the great and controlling principle, and the proper judicial function is to discern and apply the will of the [enactors]” (Matter of ATM One v Landaverde, 2 NY3d 472, 476-477 [2004], quoting Mowczan v Bacon, 92 NY2d 281, 285 [1998] [internal quotation marks omitted]).

“Legislative intent may be discerned from the face of a statute, but an apparent lack of ambiguity is rarely, if ever, conclusive . . . Generally, inquiry must be made of the spirit and purpose of the legislation, which requires examination of the statutory context of the provision as well as its legislative history” (Matter of Sutka v Conners, 73 NY2d 395, 403 [1989]; see Matter of ATM One v Landaverde, 2 NY3d at 477; Mowczan v Bacon, 92 NY2d at 285).

Moreover, “regulations . . . should be construed to avoid objectionable results” (Matter of ATM One v Landaverde, 2 NY3d at 477).

Because the statutory text is the clearest indicator of legislative intent, “the starting point in any case of interpretation{**61 AD3d at 209} must always be the language itself, giving effect to the plain meaning thereof” (Majewski v Broadalbin-Perth Cent. School Dist., 91 NY2d 577, 583 [1998]; see Matter of Jansen Ct. Homeowners Assn. v City of New York, 17 AD3d 588, 589 [2005]). “Pursuant to the maxim of statutory construction expressio unius est exclusio alterius, ‘where a law expressly describes a particular act, thing or person to which it shall apply, an irrefutable inference must be drawn that what is omitted or not included was intended to be omitted and excluded’ ” (Matter of Town of Eastchester v New York State Bd. of Real Prop. Servs., 23 AD3d 484, 485 [2005], quoting McKinney’s Cons Laws of NY, Book 1, Statutes § 240). Nonetheless, “a statute or ordinance must be construed as a whole and . . . its various sections must be considered together and with reference to each other” (People v Mobil Oil Corp., 48 NY2d 192, 199 [1979]; see Matter of Notre Dame Leasing v Rosario, 2 NY3d 459, 464 [2004]; Levine v Bornstein, 4 NY2d 241, 244 [1958]).

Responsibility for administering the Insurance Law rests with the Superintendent, who has broad power to interpret, clarify, and implement the legislative policy by promulgating regulations (see Insurance Law § 301; Raffellini v State Farm Mut. Auto. Ins. Co., 9 NY3d 196, 201 [2007]; Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d at 863-864). “[T]he interpretation given to a regulation by the agency which promulgated it and is responsible for its administration is entitled to deference if that interpretation is not irrational or unreasonable” (Matter of 427 W. 51st St. Owners Corp. v Division of Hous. & Community Renewal, 3 NY3d 337, 342 [2004] [internal quotation marks [*6]omitted]; see Matter of Brooklyn Assembly Halls of Jehovah’s Witnesses, Inc. v Department of Envtl. Protection of City of N.Y., 11 NY3d 327, 334 [2008]; Matter of Visiting Nurse Serv. of N.Y. Home Care v{**61 AD3d at 210} New York State Dept. of Health, 5 NY3d 499, 506 [2005]). However, “courts are not required to embrace a regulatory construction that conflicts with the plain meaning of the promulgated language” (Matter of Visiting Nurse Serv. of N.Y. Home Care, 5 NY3d at 506).

Applying these principles to the matter at bar, we find that the term “applicant” as used in 11 NYCRR 65-3.9 (c) refers to both provider/assignees and injured persons. Since the Superintendent’s parallel interpretation is neither irrational nor unreasonable, it is entitled to deference (see Matter of 427 W. 51st St. Owners Corp. v Division of Hous. & Community Renewal, 3 NY3d at 342; Matter of Visiting Nurse Serv. of N.Y. Home Care v New York State Dept. of Health, 5 NY3d at 506). In light of the fact that the no-fault regulations do not provide a general definition of the term “applicant,” the plain meaning of this term in 11 NYCRR 65-3.9 (c) would seem to refer to any entity, whether an injured person or a provider/assignee, who submits a claim or applies to an insurance company for no-fault benefits (see Majewski, 91 NY2d at 583). Indeed, in some instances, these regulations use the term “applicant” as a generic reference to both provider/assignees and injured persons (see e.g. 11 NYCRR 65-3.2 [b]; 65-3.3 [a]; 65-4.2 [b] [1] [i]); while, in other instances, the term “applicant” is used to refer specifically to injured persons (see e.g. 11 NYCRR 65-3.5 [e]; 65-3.8 [g]). However, construing the no-fault regulations as a whole and considering their various sections in reference to each other, as we must (see People v Mobil Oil Corp., 48 NY2d at 199), the Superintendent’s interpretation of the term “applicant,” as used in 11 NYCRR 65-3.9 (c), as a generic reference to both provider/assignees and injured persons is entitled to deference not only because the no-fault regulations do not use this term consistently and exclusively as a reference to injured persons, but because the Superintendent’s definition is consistent with the manner in which it is used in certain other instances.

The Superintendent’s interpretation of 11 NYCRR 65-3.9 (c) is additionally consistent with the spirit and purpose of the No-Fault Law (see generally Matter of ATM One v Landaverde, 2 NY3d at 477). One of the primary aims of the no-fault system is to ensure prompt payment of claims (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d at 860; Cardinell v Allstate Ins. Co., 302 AD2d at 774). The interest which accrues on overdue no-fault benefits at a rate of two percent per month (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.9 [a]) is a statutory penalty designed to encourage prompt adjustments of claims and inflict a punitive economic sanction on those insurers who do not comply (see Dermatossian v New York City Tr. Auth., 67 NY2d 219, 224 [1986]; Cardinell v Allstate Ins. Co., 302 AD2d at 774). Interpreting 11 NYCRR 65-3.9 (c) as applying the interest toll only to injured persons would allow a provider/assignee, who delays commencing legal action or requesting arbitration on denied claims, to continue to accrue interest pursuant to Insurance Law § 5106 (a) throughout this period of delay. Rewarding such delay with what amounts to essentially a windfall of punitive interest payments is at odds with the legislative goal of promptly resolving no-fault claims.{**61 AD3d at 211}

IV.

Finally, the Superintendent’s interpretation conforms with the general principle that an assignee stands in the shoes of an assignor and thus acquires no greater rights than those of its assignor (see Matter of International Ribbon Mills [Arjan Ribbons], 36 NY2d 121, 126 [1975]; Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 765 [2007]; TPZ Corp. v Dabbs, 25 AD3d 787, 789 [2006]). ” ‘It is axiomatic concerning legislative enactments in derogation of common law . . . that they are deemed to abrogate the common law only to the extent required by the clear import of the statutory language’ ” (Blue Cross & Blue Shield of N.J., Inc. v Philip Morris USA Inc., 3 NY3d 200, 206 [2004], quoting Morris v Snappy Car Rental, 84 NY2d 21, 28 [1994]). Under the interpretation of 11 NYCRR 65-3.9 (c) urged by East Acupuncture, a provider/assignee would not be subject to the toll on the accrual of [*7]statutory interest provided for by that regulation even though the toll would apply to its assignor, the injured person, if the injured person had submitted the same claim for no-fault benefits to the insurer itself. Because such an abrogation of the common law is not required by the language of 11 NYCRR 65-3.9 (c) (see Blue Cross & Blue Shield of N.J., Inc. v Philip Morris USA Inc., 3 NY3d at 206), the Superintendent’s contrary interpretation is neither irrational nor unreasonable and is, again, entitled to due deference (see Matter of 427 W. 51st St. Owners Corp. v Division of Hous. & Community Renewal, 3 NY3d at 342).

V.

We further find that East Acupuncture’s reliance upon LMK Psychological Servs., P.C. v State Farm Mut. Auto. Ins. Co. (46 AD3d 1290, 1291-1292 [2007], lv granted 10 NY3d 717 [2008]) is misplaced. In LMK, the Appellate Division, Third Department rejected the no-fault insurer’s contention that the trial court improperly awarded interest to the provider/assignees by not tolling interest for the period between 30 days after they received the claim denial until commencement of their action (see LMK Psychological Servs., P.C., 46 AD3d at 1291). Although noting that this contention was not raised by the insurer in the lower court and thus unpreserved for appellate review, the Appellate Division, Third Department went on to conclude that the interest toll only applied to no-fault claims timely denied by the insurer (id. at 1291-1292). Likewise, East Acupncture’s reliance on New York & Presbyt. Hosp. v Allstate Ins. Co. (30 AD3d at 494) is also misplaced.{**61 AD3d at 212}

This ruling, enunciated as dicta, is inapposite since it did not confront the precise issue presented by this appeal: whether the term “applicant,” as used in 11 NYCRR 65-3.9 (c), refers to both injured persons and provider/assignees (see Sabella and Lustig, Outside Counsel, Accrual Date for Payment of Interest in No-Fault Cases, NYLJ, May 29, 2008, at 4, col 4).

VI.

In conclusion, we hold that the term “applicant,” as used in 11 NYCRR 65-3.9 (c), refers to both provider/assignees and injured persons and that the toll on statutory interest provided for therein applies to no-fault claims submitted to insurers by both types of claimants. Accordingly, the Appellate Term properly determined that interest pursuant to Insurance Law § 5106 (a) did not begin to accrue on the claims that were untimely denied by Allstate until East Acupuncture filed its complaint. Thus, the Appellate Term properly reversed the order of the Civil Court and remitted the matter for the new interest calculation.

East Acupuncture’s remaining contentions are either not properly before this Court or without merit.

VII.

In accordance with the foregoing, the order dated January 3, 2007 is affirmed.

Mastro, J.P., Miller and McCarthy, JJ., concur.

Ordered that the order dated January 3, 2007 is affirmed, with costs.

Footnotes

Footnote 1: Among the conflicting decisions within our trial courts in the Second Judicial Department are: Brooklyn Chiropractic Assoc., P.C. v Progressive Cas. Ins. Co. (17 Misc 3d 13, 15 [App Term, 2d & 11th Jud Dists 2007] [interest accrues upon commencement of arbitration or action]), Vista Surgical Supplies, Inc. v State Farm Mut. Auto. Ins. Co. (15 Misc 3d 1143[A], 2007 NY Slip Op 51127[U] [Civ Ct, Kings County 2007] [same]), Tsai Chao v Country-Wide Ins. Co. (11 Misc 3d 1090[A], 2006 NY Slip Op 50794[U] [Dist Ct, Nassau County 2006] [same]), and Elmont Open MRI & Diagnostic Radiology, P.C. v Country-Wide Ins. Co. (15 Misc 3d 552 [Dist Ct, Nassau County 2007] [interest accrues 30 days after claim submission]).

Footnote 2: 11 NYCRR 65-3.9 specifically provides, in relevant part, the following:

“(a) All overdue mandatory and additional personal injury protection benefits due an applicant or assignee shall bear interest at a rate of two percent per month, calculated on a pro rata basis using a 30-day month. When payment is made on an overdue claim, any interest calculated to be due in an amount exceeding $5 shall be paid to the applicant or the applicant’s assignee without demand therefor. . . .

“(c) If an applicant does not request arbitration or institute a lawsuit within 30 days after the receipt of a denial of claim form or payment of benefits calculated pursuant to Insurance Department regulations, interest shall not accumulate on the disputed claim or element of claim until such action is taken. If any applicant is a member of a class in a class action brought for payment of benefits, but is not a named party, interest shall not accumulate on the disputed claim or element of claim until a class which includes such applicant is certified by court order, or such benefits are authorized in that action by Appellate Court decision, whichever is earlier.

“(d) If an applicant has submitted a dispute to arbitration or the courts, interest shall accumulate, unless the applicant unreasonably delays the arbitration or court proceeding” (emphasis added).

Footnote 3: Insurance Law § 5106 (a) (“Fair claims settlement”) provides, in relevant part, as follows:

“Payments of first party benefits and additional first party benefits shall be made as the loss is incurred. Such benefits are overdue if not paid within thirty days after the claimant supplies proof of the fact and amount of loss sustained. If proof is not supplied as to the entire claim, the amount which is supported by proof is overdue if not paid within thirty days after such proof is supplied. All overdue payments shall bear interest at the rate of two percent per month” (emphasis added).

Footnote 4: Although East Acupuncture’s claims predate the current version of the no-fault regulations, which became effective April 5, 2002, the regulations at issue were not materially amended and are cited herein as presently promulgated.

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

Huenke & Rodriguez, Melville, N.Y. (Christopher C. Vassallo of counsel), for respondent.

In an action to recover no-fault medical benefits under insurance contracts, the plaintiffs St. Vincent’s Hospital & Medical Center and Mount Sinai Hospital appeal from an order of the Supreme Court, Nassau County (Murphy, J.), dated September 5, 2008, which denied the motion of the plaintiff St. Vincent’s Hospital & Medical Center to hold the defendant in contempt for failure to comply with an information subpoena, and granted the defendant’s cross motion, inter alia, to vacate a judgment of the same court entered January 24, 2008, upon its default in appearing or answering the complaint, which was in favor of the plaintiff St. Vincent’s Hospital & Medical Center and against the defendant in the principal sum of $72,721.53.

Ordered that the appeal by the plaintiff Mount Sinai Hospital is dismissed, as it is not aggrieved by the order appealed from (see CPLR 5511); and it is further,

Ordered that the order is affirmed on the appeal by the plaintiff St. Vincent’s Hospital & Medical Center; and it is further,

Ordered that one bill of costs is awarded to the defendant payable by the plaintiff St. Vincent’s Hospital & Medical Center.

Under the circumstances of this case, the Supreme Court properly exercised its discretion in [*2]vacating the default judgment (see New York & Presbyt. Hosp. v American Home Assur. Co., 28 AD3d 442 [2006]; see also DeStaso v Bottiglieri, 52 AD3d 453 [2008]). The remaining contentions of the plaintiff St. Vincent’s Hospital & Medical Center are without merit (see CPLR 3211 [a] [1]; Wheels Am. N.Y., Ltd v Montalvo, 50 AD3d 1130 [2008]), or not properly before this Court. Santucci, J.P., Angiolillo, Belen and Chambers, JJ., concur.

—[*1] Taylor & Associates, Albany (Keith M. Frary of counsel), for appellant.

Taller & Wizman, P.C., Forest Hills (David Taller of counsel), for respondent.

Kavanagh, J. Appeal from an order of the Supreme Court (Hard, J.), entered March 19, 2008 in Albany County, which denied petitioner’s application pursuant to CPLR 7503 to stay arbitration between the parties.

In October 2004, respondent was involved in an automobile accident when the vehicle he was driving was rear-ended by an automobile operated by Syed Chowdhury and owned by Mohammed Ali. Three weeks after the accident, respondent’s counsel sent a letter to petitioner, respondent’s insurer, notifying it that respondent had been injured in an automobile accident, had incurred medical expenses, lost wages from work and would be seeking no-fault benefits under his insurance policy. The letter also stated that “if our investigation reveals that the offending vehicle was not insured or underinsured, we are therefore reserving our rights to pursue [uninsured motorist/supplemental uninsured/underinsured motorist] benefits under [said] endorsement in the policy.” More than two years later, in December 2006, respondent’s counsel notified petitioner that he was in the process of settling a lawsuit that respondent had commenced against Ali for the limits of Ali’s insurance policy and that respondent, upon such settlement, intended to seek supplemental uninsured/underinsured motorist (hereinafter SUM) benefits under his policy with petitioner. On January 3, 2007, petitioner notified respondent that it was disclaiming coverage under the policy on the grounds that respondent had failed to provide it with timely notice not only of his lawsuit against Ali, but also of his claim for SUM benefits. [*2]After respondent served petitioner with a notice to compel arbitration, petitioner commenced this CPLR article 75 proceeding requesting that arbitration be permanently stayed. Supreme Court dismissed the petition, prompting this appeal.

We affirm. Petitioner argues, and we agree, that respondent, on the facts presented, has failed to comply with the provisions of the policy that require prompt notice be given of any third-party litigation or any claim for SUM benefits^[FN*] (see Matter of Allstate Ins. Co. [Earl], 284 AD2d 1002, 1003 [2001]). However, for petitioner to effectively disclaim any liability under the SUM provision of the policy, it is still obligated to establish that it has been prejudiced in some meaningful way by this delay (see Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468, 475 [2005]; Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491, 498 [2002]; Matter of New York Cent. Mut. Ins. Co. v Davalos, 39 AD3d 654, 655 [2007]; Matter of New York Cent. Mut. Fire Ins. Co. v Ward, 38 AD3d 898, 899 [2007]; Matter of Nationwide Mut. Ins. Co. [Mackey], 25 AD3d 905, 906 [2006]). While respondent’s letter did not satisfy his obligation to provide prompt notice, it did put petitioner on notice of the existence of the accident and the potential implications it held for its policy.

There is no dispute that petitioner was put on notice of the existence of the accident within three weeks of its occurrence and that respondent would be submitting a claim pursuant to the no-fault provisions of the policy. With that notice, petitioner also received the police report prepared in connection with the accident that identified the individuals involved in the accident as well as the vehicle each individual was operating. Petitioner was also notified at that time that respondent would seek SUM coverage under its policy if the tortfeasor’s policy proved inadequate to fully compensate him for the injuries that he sustained in the accident. Under the circumstances, petitioner had ample information at its disposal shortly after the accident occurred to properly investigate this claim and ensure that its interests under the policy were fully protected. Equally important, petitioner has failed to demonstrate that respondent’s delay in notifying it of the third-party action or the SUM claim in any way compromised its ability to investigate the circumstances surrounding the accident or to protect its interests under this policy (see Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d at 475; Matter of Nationwide Mut. Ins. Co. [Mackey], 25 AD3d at 907). As such, its application to stay arbitration was properly denied.

Peters, J.P., Rose and Kane, JJ., concur; Spain, J., not taking part. Ordered that the order is affirmed, with costs.

Footnotes

Footnote *: Petitioner’s SUM policy required that “[a]s soon as practicable, the insured or other person making claim shall give us written notice of claim under this SUM coverage.” Additionally, the SUM endorsement provided that “if the insured . . . brings any lawsuit against any person or organization legally responsible for the use of a motor vehicle involved in the accident, a copy of the summons and complaint or other process served in connection with the lawsuit shall be forwarded immediately” to petitioner.