—[*1] Wollerstein & Futoran (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum], 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 of the Supreme Court for the Second, Eleventh, and Thirteenth Judicial Districts, dated July 10, 2008, which affirmed an order of the Civil Court of the City of New York, Kings County (Chan J.), dated March 8, 2007, which granted the plaintiff’s motion for summary judgment on the complaint in the principal sum of $2,028.50 and denied its cross motion for summary judgment dismissing the complaint.

Ordered that the order dated July 10, 2008 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, Kings County, is reversed, the plaintiff’s motion for summary judgment on the complaint is denied, and the defendant’s cross motion for summary judgment dismissing the complaint is granted, without prejudice to commencement of a new action.

On November 15, 2000 Jermaine Thomson was injured in an automobile accident. At the time of the accident, the defendant Eveready Ins. Co. was Thomson’s no-fault insurance carrier. As a result of the accident, the plaintiff Infinity Health Products, Ltd., provided medical supplies to Thomson. On March 14, 2001 the plaintiff, as assignee of Thomson, submitted to the defendant a claim for payment for the medical supplies.

Seven days later, on March 21, 2001, the defendant sent a letter to the plaintiff acknowledging receipt of the bills and advising that it could not process the request until it received further verification of the claim. The plaintiff did not respond to this verification request. On April 17, 2001, 27 days after the first verification request was sent, the defendant sent a second verification request to the plaintiff. The plaintiff also did not respond to the second verification request.

In February 2005, the plaintiff commenced this action in the Civil Court of the City of New York, Kings County, inter alia, to recover the sum of $2,028.50, the cost of the medical [*2]supplies it provided to Thomson. The plaintiff moved for summary judgment on the complaint, arguing, among other things, that the defendant failed to pay or deny the claim within 30 days as required by 11 NYCRR former 65.15 (g) (3) (now 11 NYCRR 65-3.8 [c]). The defendant cross-moved for summary judgment dismissing the complaint, asserting, inter alia, that the action was “not ripe[ ] pending verification requests.”

The Civil Court granted the plaintiff’s motion and denied the defendant’s cross motion, holding that the defendant failed to precisely comply with regulations promulgated by the Superintendent of Insurance (hereinafter the Insurance regulations) because it did not wait a full 30 days (after the plaintiff failed to respond to the first verification request) before sending out a second verification request. The defendant appealed to the Appellate Term for the Second, Eleventh, and Thirteenth Judicial Districts, which affirmed the order in a 2-1 decision. The Appellate Term majority concluded, among other things, that the defendant’s follow-up verification demand, which was mailed 27 days after its initial demand, was “premature and without effect.”

Pursuant to Insurance Law § 5106 (a) and the Insurance regulations, an insurer must either pay or deny a claim for motor vehicle no-fault benefits, in whole or in part, within 30 days after an applicant’s proof of claim is received (see Insurance Law § 5106 [a]; 11 NYCRR former 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]; see also 11 NYCRR 65-3.5) An insurer can extend the 30-day period within which to pay or deny a claim by making a timely demand for further verification of the claim (see 11 NYCRR former 65.15 [d] [2]).

There is no dispute here that the defendant timely requested initial verification by sending out its verification request within seven days (on Mar. 21, 2001) after receipt of the plaintiff’s claim (on Mar. 14, 2001). There also is no dispute that the plaintiff did not respond to the defendant’s timely initial verification request. An insurer does not have to pay or deny a claim until it has received verification of all of the relevant information requested (see 11 NYCRR former 65.15 [g] [1] [i]; [2] [iii]). The issue in this case is whether an insurer loses the toll of the 30-day rule to pay or deny the claim, which is afforded by an initial timely request for verification, simply because its follow-up verification request is sent 3 days before the expiration of a full 30 days after a plaintiff fails to respond to the initial request. The Insurance regulations stated, in pertinent part, that “if any requested verification has not been supplied to the insurer 30 calendar days after the original request, the insurer shall, within 10 calendar days, follow up with the party from whom the verification was originally requested” (11 NYCRR former 65.15 [e] [2]).

Although the defendant in this case did not strictly comply with the time limitation set forth in the rule regarding the submission of a second verification request, under the circumstances of this case, the plaintiff is estopped from claiming that the defendant is precluded from asserting any defense to the claim. It would be inequitable to award summary judgment to the plaintiff, which ignored two verification requests, merely because the defendant, slightly prematurely, sent its second verification request a mere 3 days before the expiration of a full 30 days after the first verification request had been sent (see New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699 [2001]; see generally Chemical Bank v City of Jamestown, 122 AD2d 530 [1986]; Guberman v William Penn Life Ins. Co. of N.Y., 146 AD2d 8 [1989]). Indeed, in light of the particular factual circumstances herein, it would be incongruous to conclude that the Insurance regulation regarding follow-up verification, or any other statute or rule, warrants a result which would, in effect, penalize an insurer who diligently attempts to obtain the information necessary to make a determination of a claim, and concomitantly, rewards a plaintiff who makes no attempt to even comply with the insurer’s requests. Such a result is not contemplated by the “no-fault law” or its regulations, which should be interpreted to promote the expeditious handling of verification requests and prompt claim resolution.

Furthermore, inasmuch as the plaintiff did not respond to either of the 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 former 65.15 [g] [1] [i]; [2] [iii]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]). Thus, the plaintiff’s action is premature (see Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903 [2007]; Hospital for Joint [*3]Diseases v ELRAC, Inc., 11 AD3d 432 [2004]).

Accordingly, the plaintiff was not entitled to summary judgment on the complaint, and the defendant’s cross motion for summary judgment dismissing the complaint should have been granted (see 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. Mastro, J.P., Santucci, Chambers and Lott, JJ., concur.

—[*1] McDonnell & Adels, PLLC, Garden City, N.Y. (Martha S. Henley and Short & Billy [Skip Short], of counsel), for appellant.

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

In an action to recover no-fault medical payments under two insurance contracts, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), entered September 25, 2008, as denied that branch of its motion which was pursuant to CPLR 5015 to vacate so much of a judgment of the same court entered May 15, 2008, as, upon its default in appearing or answering the complaint, is in favor of the plaintiff St. Barnabas Hospital, as assignee of Patrick Bateman, and against it in the principal sum of $4,309.64.

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

A defendant seeking to vacate a judgment entered upon its default in appearing or answering the complaint must demonstrate a reasonable excuse for its delay in appearing or answering, as well as a meritorious defense to the action (see CPLR 5015 [a] [1]; Westchester Med. Ctr. v Hartford Cas. Ins. Co., 58 AD3d 832, 832 [2009]; Verde Elec. Corp. v Federal Ins. Co., 50 AD3d 672, 672-673 [2008]).

“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 preclusion where said 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 defendant insurer, Allstate Insurance Company (hereinafter Allstate), issued a timely denial of claim within 30 days of its receipt of the completed hospital facility form (NYS Form N-F 5) from the plaintiff St. Barnabas Hospital, as assignee of Patrick Bateman (hereinafter the plaintiff) (see 11 NYCRR 65-3.5 [g]; 65-3.8 [c]). Contrary to Allstate’s contention, however, the Supreme Court properly determined that the denial of claim, which incorrectly stated the amount of the claim and gave an invalid reason for the denial (see 11 NYCRR 65-3.3 [d]; 65-3.5 [g]; see also Westchester Med. Ctr. v Lincoln [*2]Gen. Ins. Co., 60 AD3d 1045, 1046 [2009]; Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535, 536 [2005]), was fatally defective (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d at 565; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d at 665; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613, 614 [1996]). Thus, Allstate failed to demonstrate the existence of a meritorious defense (see CPLR 5015 [a] [1]).

Accordingly, the Supreme Court properly denied that branch of Allstate’s motion which was pursuant to CPLR 5015 to vacate so much of a judgment of the same court entered May 15, 2008, as, upon its default in appearing or answering the complaint, is in favor of the plaintiff and against it in the principal sum of $4,309.64. Skelos, J.P., Covello, Santucci and Balkin, JJ., concur.

—[*1] Law Office of J. Michael Hayes, Buffalo (J. Michael Hayes of counsel), for plaintiff-appellant.

Law Office of Daniel R. Archilla, Buffalo (David H. Frech of counsel), for defendant-respondent.

Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.), entered July 25, 2008. The order denied plaintiff’s motion for summary judgment and granted defendant’s motion to sever the causes of action.

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

Memorandum: Plaintiff, as assignee of 14 patients to whom it provided radiological services, commenced this action seeking to recover no-fault benefits pursuant to the contract between each patient and defendant insurer. We conclude that Supreme Court properly denied plaintiff’s motion for summary judgment on the amended complaint. Although plaintiff made a prima facie showing of entitlement to judgment as a matter of law by submitting evidence that the prescribed statutory billing forms were received by defendant and that defendant’s payment of no-fault benefits to plaintiff was overdue (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779, 780 [2007]; LMK Psychological Servs., P.C. v Liberty Mut. Ins. Co., 30 AD3d 727, 728 [2006]), defendant raised a triable issue of fact by submitting its denial of claim forms setting forth that the services for which plaintiff sought to recover no-fault benefits were not medically necessary (see Countrywide Ins. Co. v 563 Grand Med., P.C., 50 AD3d 313, 314 [2008]; A.B. Med. Servs., PLLC, 39 AD3d at 780-781). Contrary to plaintiff’s contention, defendant is not precluded from denying the claims after the services were rendered on the ground of lack of medical necessity. Plaintiff’s assignors were entitled only to reimbursement for medically “necessary” expenses (Insurance Law § 5102 [a] [1]; see 11 NYCRR 65-1.1 [d]), and plaintiff assignee is subject to that lack of medical necessity defense (see Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 765 [2007]).

Contrary to plaintiff’s further contention, the court did not abuse its discretion in granting defendant’s motion to sever the 14 causes of action. “The decision whether to grant severance ‘rests soundly in the discretion of the trial court and, on appeal, will be affirmed absent a demonstration of abuse of discretion or prejudice to a substantial right’ ” (Rapini v New Plan Excel Realty Trust, Inc., 8 AD3d 1013, 1014 [2004]; see Soule v Norton, 299 AD2d 827, 828 [2002]). [*2]Although this action was commenced “by a single assignee against a single insurer and all [causes of action] allege the erroneous nonpayment of no-fault benefits . . . , they arise from [14] different automobile accidents on various dates in which the [14] unrelated assignors suffered diverse injuries and required different medical treatment” (Poole v Allstate Ins. Co., 20 AD3d 518, 519 [2005]). Present—Scudder, P.J., Hurlbutt, Martoche, Smith and Centra, JJ.

—[*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).]