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

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

In an action to recover no-fault medical payments, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Feinman, J.), dated July 25, 2007, as denied its motion for summary judgment on the complaint.

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

The plaintiff established its prima facie entitlement to judgment as a matter of law. It submitted evidentiary proof that the prescribed statutory billing forms were mailed and received, that payment of no-fault benefits was overdue (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]), and that the denial of claim form it received from the defendant, dated June 25, 2006, was fatally insufficient in that it failed to include the information called for in the prescribed denial of claim form (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613 [1996]; cf. Westchester Med. Ctr. v Allstate Ins. Co., 45 AD3d 579 [2007]). However, in opposition, the defendant submitted admissible evidence in the form of an affidavit of an employee with knowledge of the defendant’s standard office practices or procedures designed to ensure that items were properly addressed and mailed (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374 [2001]; Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [2007]; cf. Westchester Med. Ctr. v Countrywide Ins. Co., 45 AD3d 676 [2007]). The employee attested that a denial [*2]of claim form dated June 22, 2006, containing all the information called for in the prescribed form was timely issued to the plaintiff on that date. Thus, the defendant raised a triable issue of fact as to whether it issued a proper denial of claim form.

Contrary to the plaintiff’s further contention, the excerpts of the insured’s medical records submitted by the defendant in opposition to its motion constituted admissible evidence sufficient to raise a triable issue of fact as to whether the defendant was entitled to deny the claim (see CPLR 4518 [c]; Maxcy v County of Putnam, 178 AD2d 729 [1991]). Prudenti, P.J., Fisher, Miller and Balkin, JJ., concur.

—[*1] Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of counsel), for defendant-appellant.

Barth Sullivan Behr, Buffalo (Pierre A. Vincent of counsel), for plaintiff-respondent.

Appeal from an order of the Supreme Court, Erie County (Joseph R. Glownia, J.), entered March 6, 2007. The order, insofar as appealed from, denied the cross motion of defendant James W. Celotto to dismiss the complaint against him.

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

Memorandum: Plaintiff commenced this action in Buffalo City Court seeking to recover the amount that it paid to its insured for property damage sustained in a collision between the insured’s vehicle and a vehicle operated by James W. Celotto (defendant). Plaintiff did not move pursuant to CPLR 3025 (b) to amend the complaint to add a cause of action to recover no-fault personal injury protection (PIP) and additional personal injury protection (APIP) benefits paid to its insured and to increase the ad damnum clause but, rather, it merely informed a court attorney at Buffalo City Court by letter of those proposed amendments. The court attorney advised plaintiff that, because the proposed amendment to the ad damnum clause would remove the action from the jurisdictional limits of Buffalo City Court, the Judge assigned to the action was directing plaintiff to seek removal of the action pursuant to CPLR 325 (b).

Supreme Court granted plaintiff’s motion to remove the action to that court, denied the cross motion of defendant to dismiss the complaint against him, and sua sponte removed the action back to Buffalo City Court pursuant to CPLR 325 (d) and 22 NYCRR 202.13 (e). Defendant contends on appeal that Supreme Court erred in denying that part of his cross motion seeking dismissal of the claims to recover PIP and APIP benefits paid to plaintiff’s insured. The complaint, however, was never amended and it does not contain any such claims (see Everett v Loretto Adult Community, Inc., 32 AD3d 1273, 1274-1275 [2006]). We thus conclude that the court properly denied the cross motion (see generally Moscato v City of New York [Parks Dept.], 183 AD2d 599, 601 [1992]). Present—Martoche, J.P., Centra, Lunn, Peradotto and Green, JJ.

—[*1] Karen C. Dodson (Carol R. Finocchio, New York, N.Y. [Lisa M. Comeau] of counsel), for appellant.

Alden Banniettis, Brooklyn, N.Y. (Jeff Henle of counsel), for respondent.

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 and Eleventh Judicial Districts, dated December 15, 2006 [14 Misc 2d 128(A), 2006 NY Slip Op 52502(U)], which reversed so much of an order of the Civil Court of the City of New York, Kings County (Sweeney, J.), dated September 14, 2005, as denied the plaintiff’s motion for summary judgment on the complaint, and thereupon granted the plaintiff’s motion.

Ordered that the order is affirmed, with costs.

The plaintiff established, prima facie, its entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Contrary to the defendant’s contention, the Appellate Term properly determined that the peer review reports submitted in opposition to the plaintiff’s motion for summary judgment on the complaint were inadmissible since they contained computerized, affixed, or stamped facsimiles of the physician’s signature. These reports failed to comply with CPLR 2106, since they were not subscribed and affirmed, but merely contained facsimiles of the physician’s signature without any indication as to who placed them on the reports, nor are there any indicia that the facsimiles were properly authorized (see Dowling v Mosey, 32 AD3d 1190, 1191 [2006]; Security Pac. Natl. Trust Co. v Cuevas, 176 Misc 2d 846 [1998]; Sandymark Realty Corp. v Creswell, 67 Misc 2d 630 [1971]; Macri v St. Agnes Cemetery, 44 Misc 2d 702 [1965]). Thus, the [*2]reports did not constitute competent evidence sufficient to defeat the plaintiff’s motion (see generally Burgos v Vargas, 33 AD3d 579 [2006]; Bourgeois v North Shore Univ. Hosp. at Forest Hills, 290 AD2d 525 [2002]; Doumanis v Conzo, 265 AD2d 296 [1999]; MZ Dental, P.C. v Progressive Northeastern Ins. Co., 6 Misc 3d 649 [2004]). Accordingly, the Appellate Term properly granted the plaintiff’s motion for summary judgment on the complaint based on the defendant’s failure to raise a triable issue of fact in opposition to the plaintiff’s prima facie showing on the motion. Lifson, J.P., Florio, Eng and Chambers, JJ., concur.

—[*1] Thomas Torto, New York (Jason Levine of counsel), for appellant.

Gary Tsirelman, Brooklyn, for respondent.

Judgment, Supreme Court, New York County (Helen E. Freedman, J.), entered January 30, 2007, awarding defendant the principal sum of $12,638.96, and bringing up for review an order, same court and Justice, entered May 25, 2006, which granted defendant’s motion for summary judgment on its claim for first-party no-fault insurance benefits, and an order, same court and Justice, entered May 30, 2006, which in effect granted plaintiff’s motion for reargument and, upon reargument, adhered to its prior determination, unanimously reversed, on the law, without costs, the judgment vacated, and defendant’s motion for summary judgment denied. Appeal from the order entered May 30, 2006 unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Defendant medical provider established prima facie its entitlement to judgment as a matter of law by demonstrating that the necessary billing documents were mailed to and received by plaintiff insurer and that payment of the no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; New York & Presbyt. Hosp. v Countrywide Ins. Co., 44 AD3d 729, 730 [2007]). However, in opposition to the motion, plaintiff raised a triable issue of fact whether the claimed benefits were properly denied for lack of medical justification. Plaintiff was not required to set forth the medical rationale in the prescribed denial of claim form (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007]). Nor is a nurse’s review denying no-fault claims for lack of medical necessity per se invalid (see Channel Chiropractic, P.C. v Country-Wide Ins. Co., 38 AD3d 294, 295 [2007]). [*2]

Plaintiff waived its objection to defendant’s standing (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 320 [2007]). Concur—Saxe, J.P., Sweeny, McGuire and Acosta, JJ.

—[*1] Goldberg Segalla, L.L.P., Albany (Stuart Bodoff of Rivkin Radler, L.L.P., Uniondale, of counsel), for appellant.

Law Office of Craig Meyerson, Latham (Craig Meyerson of counsel), for respondents.

Mugglin, J. Appeals (1) from three orders of the Supreme Court (Pulver, Jr., J.), entered January 12, 2007, January 26, 2007 and April 16, 2007 in Greene County, which, among other things, granted plaintiffs’ cross motion for summary judgment on certain causes of action, and (2) from the judgment entered thereon.

Plaintiffs, two psychological services providers, sued defendant to recover on no-fault claims assigned to them by individuals insured by defendant who had been injured in automobile accidents. At issue on this appeal is the grant of summary judgment to plaintiffs on certain causes of action, the computation of interest thereon and the award of counsel fees. With respect to the first issue, defendant argued that plaintiffs failed to establish standing to commence the action by reason of their failure to submit documentation establishing the assignment of the claims to them. Defendant’s counsel has advised that, in light of the Court of Appeals decision in Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co. (9 NY3d 312 [2007]), this issue has been withdrawn.

Turning to the remaining arguments, we first reject defendant’s contention that Supreme Court improperly awarded interest to plaintiffs by not tolling the interest for the period between 30 days after plaintiffs received the claim denial until plaintiffs commenced this action. Since [*2]defendant failed to raise this challenge to the proposed judgment before Supreme Court, the issue is unpreserved for our review (see Ferran v Dwyer, 252 AD2d 758, 759 [1998]; Hopper v Lockey, 241 AD2d 892, 893-894 [1997]). In any event, the argument is meritless. Interest on untimely paid no-fault claims is calculated at the rate of 2% per month, compounded, commencing 30 days after proper presentment of the claim (see 11 NYCRR former 65.15 [h] [1]; Hempstead Gen. Hosp. v Insurance Co. of N. Am., 208 AD2d 501, 501 [1994]; Smithtown Gen. Hosp. v State Farm Mut. Auto. Ins. Co., 207 AD2d 338, 339 [1994]). Interest will be stayed only in those circumstances where a claimant has failed to submit the claim to arbitration or to commence an action within 30 days after receipt of the timely denial of the claim and does not, thereafter, begin to accrue until action is taken (see East Acupuncture, P.C. v Allstate Ins. Co., 15 Misc 3d 104, 106 [2007]). Here, defendant did not issue a proper and timely denial to plaintiffs’ no-fault claims and, thus, defendant is not entitled to the benefit of the tolling provision. This interpretation of the regulatory scheme promotes the prompt resolution and compensation of claims and prohibits any reward to a “dilatory insurance company” (Elmont Open MRI & Diagnostic Radiology, P.C. v Country-Wide Ins. Co., 15 Misc 3d 552, 558 [2007]). Thus, to avoid penalizing injured parties and to encourage the prompt resolution of claims, insurance companies are not entitled to a tolling of the accumulation of interest where they have failed to pay or properly deny a claim within the required time limits (see Cardinell v Allstate Ins. Co., 302 AD2d 772, 774 [2003]).

Finally, Supreme Court did not err in awarding counsel fees on a per claim basis rather than a per assignor basis. When forced to commence an action to compel the payment of a proper no-fault claim, a claimant is entitled to recover counsel fees in the sum of 20% of the amount of first-party benefits, plus interest, subject to a maximum fee of $850 (see Insurance Law § 5106 [a]; 11 NYCRR former 65.17 [b] [6] [v]; 65.18 [f] [5]). Notably, the Superintendent of Insurance issued an opinion letter on October 8, 2003 that counsel fees are calculated on a per assignor basis (see Ops Gen Counsel NY Ins Dept No. 03-10-04 [Oct. 2003]; Marigliano v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 1079 [2006]). We conclude that such opinion letter is not an appropriate interpretation of the statute. Although we ordinarily give deference to the agency’s interpretation of its own regulations, such deference need not be accorded where, as here, the interpretation conflicts with the explicit language of the controlling statute (see Marigliano v New York Cent. Mut. Fire Ins. Co., 15 Misc 3d 766, 774 [2007]; Alpha Chiropractic P.C. v State Farm Mut. Auto. Ins. Co., 14 Misc 3d 673, 678 [2006]).

The Superintendent’s interpretation undermines the goal of the no-fault law to fully compensate a claimant for economic loss resulting from the wrongful denial of a claim and wastes judicial assets by encouraging the commencement of multiple actions in order to recover the maximum available counsel fees (see Midwood Total Rehab. Med., P.C. v State Farm Mut. Auto. Ins. Co., 16 Misc 3d 480, 482 [2007]). Moreover, in spite of the Superintendent’s opinion letter, the well-settled case law is that the statute requires payment of counsel fees on a per claim basis (see Marigliano v New York Cent. Mut. Fire Ins. Co., 15 Misc 3d at 772; Valley Stream Med. & Rehab, P.C. v Liberty Mut. Ins. Co., 15 Misc 3d 576 [2007]; Alpha Chiropractic P.C. v State Farm Mut. Auto. Ins. Co., 14 Misc 3d at 673; Willis Acupuncture, P.C. v Government Empls. Ins. Co., 6 Misc 3d 1002[A], 2004 NY Slip Op 51702[U] [2004]).

Mercure, J.P., Rose, Lahtinen and Kane, JJ., concur. Ordered that the orders and judgment are affirmed, with costs.

—[*1] Goldman & Grossman, New York, N.Y. (Jay S. Grossman and Eleanor R. Goldman of counsel), for appellant.

Jeffrey H. Schwartz, New York, N.Y., for respondents.

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Kings County (Held, J.), dated June 26, 2007, which denied the petition.

Ordered that the order is reversed, on the law, with costs, and the petition to permanently stay the arbitration is granted.

The Supreme Court erred in denying the petition for a permanent stay of arbitration since the respondents failed to file a sworn statement with the petitioner insurance company within 90 days of the alleged hit-and-run accident, in accordance with the requirement of the uninsured motorist endorsement of the subject insurance policy. The respondents thus failed to satisfy a condition precedent of coverage under the policy, and are not entitled to arbitrate their claim seeking coverage (see Matter of Eveready Ins. Co. v Mesic, 37 AD3d 602 [2007]; Matter of Empire Ins. Co. v Dorsainvil, 5 AD3d 480, 481 [2004]; Matter of Legion Ins. Co. v Estevez, 281 AD2d 420 [2001]; Matter of Aetna Life & Cas. v Ocasio, 232 AD2d 409 [1996]; Matter of State Farm Ins. Co. v Velasquez, 211 AD2d 636, 637 [1995]). “Moreover, the fact that the petitioner received some notice of the accident by way of an application for no-fault benefits did not negate the breach of the policy requirement” (Matter of Eveready Ins. Co. v Mesic, 37 AD3d at 603; see Matter of Allstate Ins. Co. v Estate of Aziz, 17 AD3d 460, 461 [2005]; Matter of American Home Assur. Co. v Joseph, 213 AD2d 633 [1995]). [*2]

The petitioner’s remaining contention need not be addressed in light of our determination. Ritter, J.P., Florio, McCarthy and Dickerson, JJ., concur.

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

Law Office of Teresa M. Spina, Woodbury (Emilio A. Cacace of counsel), for respondent-appellant.

Cardona, P.J. Cross appeals from an order of the Supreme Court (Bradley, J.), entered October 6, 2006 in Ulster County, which, among other things, vacated an inquest and denied defendant’s motion to dismiss the complaint.

Plaintiff was injured while driving a vehicle insured by defendant. After initially paying plaintiff no-fault insurance benefits, defendant terminated any additional payments citing plaintiff’s failure to appear for independent medical examinations. Plaintiff then commenced this action to recover benefits allegedly owed to her.

Supreme Court granted plaintiff’s subsequent motion for summary judgment and directed plaintiff to submit a proposed judgment. Defendant did not object to the judgment, which was then adopted by Supreme Court. Thereafter, defendant successfully moved to vacate the judgment based upon plaintiff’s improper service and filing thereof, and Supreme Court granted its request for an inquest on the issue of damages.

At the inquest, defendant moved to dismiss the complaint. Supreme Court denied that motion, without prejudice, but vacated the inquest, determining that it was premature as the [*2]issues raised in the motion required further discovery. These cross appeals ensued, with defendant contending that its motion to dismiss should have been granted, and plaintiff arguing that Supreme Court should not have vacated the inquest.

Defendant argues four grounds in support of its motion to dismiss the complaint. First, it contends that plaintiff’s purported assignment of her right to receive benefits deprived her of standing to commence this action. As an objection to standing must be made by a preanswer motion to dismiss or asserted as a defense in the answer (see CPLR 3211 [e]; Matter of Prudco Realty Corp. v Palermo, 60 NY2d 656, 657 [1983]), defendant’s motion on this basis is untimely. Next, defendant contends that plaintiff did not timely submit certain claims for no-fault benefits. However, an insurer must ” ‘stand or fall upon the defense upon which it based its refusal to pay’ ” and cannot later create new defenses by requiring an insured’s compliance with the policy provisions (King v State Farm Mut. Auto Ins. Co., 218 AD2d 863, 865 [1995], quoting Beckley v Otsego County Farmers Coop. Fire Ins. Co., 3 AD2d 190, 194 [1957]; see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 198-200 [1997]). Having initially denied plaintiff’s claims based on her failure to attend independent medical examinations, defendant cannot now base a motion to dismiss on this new ground.

As the third ground for dismissal, defendant claims that because plaintiff has not suffered out-of-pocket damages for which it would be obligated to pay, plaintiff has not stated a cause of action. However, no-fault benefits are intended to reimburse persons for, among other things, medical expenses “incurred” as a result of a motor vehicle accident (Insurance Law § 5102 [a]). Plaintiff incurred such expenses at the time that she received treatment for her injuries (see e.g. Rubin v Empire Mut. Ins. Co., 25 NY2d 426 [1969]; see also 11 Couch on Insurance 3d § 158:12) and the fact that the bills may have already been paid by other sources, including her private health insurer, does not extinguish defendant’s obligation. Finally, while defendant correctly contends that it is not precluded from challenging plaintiff’s bills on the basis of noncoverage (see e.g. Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d at 199-202; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 18-19 [1999]; King v State Farm Mut. Auto. Ins. Co., 218 AD2d at 865), we find that defendant’s motion submissions were not sufficient to establish its entitlement to dismissal on this basis.

In light of the foregoing, we conclude that Supreme Court properly denied defendant’s motion to dismiss. However, we discern no basis to vacate the inquest and order more discovery on the above issues. Neither party requested additional discovery before Supreme Court or argues for it on appeal and, absent any clear need for further discovery, we conclude that “all proof necessary to determine the appropriate damage award was before the court” (Domino Media v Kranis, 215 AD2d 278 [1995]). Accordingly, the matter is remitted to Supreme Court to make a determination of damages (see id.).

Mugglin, Rose, Lahtinen and Kane, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as vacated the inquest and ordered additional discovery; matter remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision; and, as so modified, affirmed.

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

D’Ambrosio & D’Ambrosio, P.C., Irvington, N.Y. (John P. D’Ambrosio of counsel), for respondent.

In an action to recover no-fault medical payments under insurance contracts, the plaintiff appeals from an order of the Supreme Court, Nassau County (Galasso, J.), dated April 5, 2007, which denied its motion for summary judgment on its first cause of action, and conditionally granted the defendant’s cross motion for summary judgment dismissing the first cause of action.

Ordered that the order is modified, on the law, by deleting the provision thereof conditionally granting the defendant’s cross motion for summary judgment dismissing the first cause of action and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed, without costs or disbursements.

On March 24, 2006 Michael Forthmuller was seriously injured when he lost control of his vehicle and crashed into a telephone pole. Immediately after the accident, Forthmuller was transported to Sound Shore Medical Center (hereinafter Sound Shore), where he underwent emergency surgery. Forthmuller was then transferred to the plaintiff hospital, where he remained hospitalized for approximately one month.

On or about May 4, 2006 the plaintiff, as Forthmuller’s assignor, sent the defendant, inter alia, a hospital facility form (NYS Form N-F5) seeking payment of its hospital bill. The [*2]defendant received the hospital facility form on May 8, 2006. Three days later, on May 11, 2006, the defendant sent the plaintiff a letter indicating that benefits payments remained delayed pending receipt of Forthmuller’s medical records, which had been previously requested. The defendant alleges that after it received the plaintiff’s medical records on May 15, 2006, it learned that Forthmuller had first been treated after the accident at Sound Shore. Accordingly, on May 20, 2006 the defendant sent Sound Shore a verification request seeking its medical records pertaining to Forthmuller’s treatment, including any blood alcohol serum toxicology test results. The defendant received Sound Shore’s medical records on June 29, 2006 and on July 12, 2006, it denied the plaintiff’s claim upon the ground that Forthmuller was driving while intoxicated at the time of the accident.

Prior to receiving the defendant’s denial of the claim, the plaintiff commenced this action seeking, in its first cause of action, to recover payment for the medical services provided to Forthmuller, as well as statutory interest and an attorney’s fee. The plaintiff thereafter moved for summary judgment on its first cause of action, contending that no-fault benefits were overdue because the defendant had failed to either pay or deny its claim within 30 days as required by Insurance Law § 5106 (a) and 11 NYCRR 65-3.2. The defendant cross-moved for summary judgment dismissing the first cause of action, arguing that the 30-day period in which to pay or deny the claim was not triggered until it received the Sound Shore records it had requested as verification. The defendant also relied upon laboratory results contained in an uncertified copy of Sound Shore’s medical records as proof that Forthmuller was legally intoxicated at the time of the accident. The Supreme Court denied the plaintiff’s motion for summary judgment, and conditionally granted the hospital’s cross motion pending receipt of “a certified toxicology report from Sound Shore.”

“[Where] a denial of no-fault benefits rests on the statutory exclusion of intoxication pursuant to Insurance Law § 5103 (b) (2), the regulations promulgated thereunder trigger certain timing and notification requirements that extend the 30-day statutory period within which an insurer must pay or deny a claim” (Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750, 753 [2007]; see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 279 [1997]). In this regard, 11 NYCRR 65-3.8 (g) provides that “if an insurer has reason to believe that the applicant was operating a motor vehicle while intoxicated or impaired by the use of a drug, and such intoxication or impairment was a contributing cause of the automobile accident, the insurer shall be entitled to all available information relating to the applicant’s condition at the time of the accident.” This provision also states that proof of a claim shall not be complete until the information which has been requested pursuant thereto has been furnished to the insurer. Furthermore, pursuant to 11 NYCRR 65-3.5 (c), “[t]he insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested.”

Here, the plaintiff made a prima facie showing of its entitlement to judgment as a matter of law on its first cause of action by submitting, inter alia, the requisite no-fault billing forms, a certified mail receipt referencing the patient, a signed return receipt card also referencing the patient, and the affidavit of its biller averring that the defendant failed to either pay the bill or issue a timely denial of claim form (see Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750 [2007]; Westchester Med. Ctr. v Safeco Ins. Co. of Am., 40 AD3d 984 [2007]; New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007]; New York & Presbyt. Hosp. v Travelers Prop. Cas. Ins. Co., 37 AD3d 683 [2007]). In opposition to the motion, however, the defendant raised a triable issue of fact as to whether it timely denied the claim by submitting evidence that a verification [*3]request seeking information regarding Forthmuller’s alleged intoxication was timely and properly sent to Sound Shore (see Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750 [2007]; cf. Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). In addition, the defendant also raised a triable issue of fact as to whether Forthmuller was intoxicated at the time of the accident and whether his intoxication caused the accident by submission of the Sound Shore laboratory results and a police accident report. Although the Sound Shore records were not in admissible form both because they were not certified and because the defendant failed to lay a proper foundation by proffering evidence of satisfactory care in the collection of Forthmuller’s blood sample and its analysis (see Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750 [2007]; Marigliano v City of New York, 196 AD2d 533 [1993]; Fafinski v Reliance Ins. Co., 106 AD2d 88, 91-92 [1985], affd 65 NY2d 990 [1985]), the Supreme Court properly considered this evidence in opposition to the plaintiff’s motion (see Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750 [2007]). In addition, the police accident report describing the circumstances of the accident was properly considered to the extent that it was based upon the personal observations of the police officer present at the scene and who was under a business duty to make it (see CPLR 4518 [a]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750 [2007]).

However, the Supreme Court should not have conditionally granted the defendant’s cross motion pending receipt of a certified toxicology report from Sound Shore. Even if the subject lab results were contained in certified hospital records, the defendant failed to lay a proper foundation for the admission of this evidence. Absent a proper foundation, certified laboratory results would be insufficient to make a prima facie showing that Forthmuller was intoxicated at the time of the accident (see Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750 [2007]). Moreover, the defendant also failed to make a prima facie showing that Forthmuller’s alleged intoxication was a proximate cause of the accident (id.; see Lynch v Progressive Ins. Co., 12 AD3d 570, 571 [2004]; Scahall v Unigard Ins. Co., 222 AD2d 1070, 1071 [1995]). Since the defendant failed to make a prima facie showing, its cross motion should have been denied regardless of the sufficiency of the plaintiff’s opposition papers (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). [*4]

Motion by the appellant, inter alia, to strike stated portions of the respondent’s brief on an appeal from an order of the Supreme Court, Nassau County, dated April 5, 2007, on the ground that it contains “scurrilous” attacks on the appellant’s counsel. By decision and order on motion of this Court dated September 19, 2007, the motion was held in abeyance and referred to the Justices hearing the appeal for determination upon the argument or submission thereof.

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

Ordered that the motion is granted to the extent that those portions of the respondent’s brief which are identified in pages one through three of the affirmation of Joseph Henig dated August 14, 2007, submitted in support of the motion, are stricken and have not been considered on the appeal.

Although the appellant’s brief inappropriately makes “boilerplate” arguments regarding the lack of timelines of the denial of the subject claim without regard to the particular facts attendant to the case, the respondent’s ad hominem attack on the appellant’s counsel is unwarranted. The defects in the appellant’s brief are more properly brought to the Court’s attention without resorting to disparaging remarks. Goldstein, J.P., Skelos, Fisher and Dillon, JJ., concur.

—[*1] Robert P. Macchia (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall Sweetbaum] of counsel), for appellant.

Seth A. Eschen, Syosset, N.Y., for respondent.

In a proceeding pursuant to CPLR article 75 to confirm two arbitration awards, Allstate Insurance Company appeals from a judgment of the Supreme Court, Nassau County (Brandveen, J.), dated September 8, 2006, which, upon an order of the same court dated November 30, 2005, in effect, granting the petition and denying its cross motion to vacate the awards, is in favor of the petitioner and against it in the principal sum of $36,274.86.

Ordered that the judgment is affirmed, with costs.

An award in a compulsory arbitration proceeding may be upheld if it has evidentiary support and is not arbitrary and capricious (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; Matter of DiNapoli v Peak Automotive, Inc., 34 AD3d 674 [2006]; Matter of Eagle Ins. Co. v First Cardinal Corp., 8 AD3d 483 [2004]).

Contrary to the contention of Allstate Insurance Company (hereinafter Allstate), the subject arbitration awards directing it to reimburse the petitioner insurance company for payment of no-fault benefits was not arbitrary and capricious. It is undisputed that Allstate failed to timely file a written answer, and that its answer and accompanying evidentiary submissions were thus rejected by the arbitrator. Furthermore, there is no indication in the record that Allstate offered the arbitrator any explanation for its failure to submit a timely answer, and no representative of the company appeared at the arbitration hearing to offer evidence. Under these circumstances, we cannot [*2]conclude that the arbitrator’s refusal to consider the lack of coverage defense asserted in Allstate’s untimely answer was arbitrary and capricious. Accordingly, the Supreme Court properly confirmed the arbitration awards in favor of the petitioner. Spolzino, J.P., Krausman, Carni and Dickerson, JJ., concur.

—[*1] Short & Billy, P.C., New York, N.Y. (Naim M. Peress of counsel), for appellant.

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

In an action pursuant to Insurance Law § 5106 (a) to recover no-fault benefits allegedly awarded under an insurance contract issued by the defendant, the defendant appeals (1), as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Woodard, J.), dated December 19, 2006, as, upon reargument, granted the plaintiff’s motion for summary judgment on the complaint, which had been denied in a prior order of the same court dated June 20, 2006, and (2) from a judgment of the same court entered January 2, 2007, which is in favor of the plaintiff and against it in the principal sum of $86,829.36.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is reversed, on the law, so much of the order dated June 20, 2006, as, upon reargument, granted the plaintiff’s motion for summary judgment on the complaint is vacated, and, upon reargument, the court adheres to its original determination in the order dated June 20, 2006, denying the motion; and it is further,

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

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 [*2]241, 248 [1976]). 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 Supreme Court, upon reargument, should have adhered to its original determination denying the plaintiff’s motion for summary judgment. On that motion, the plaintiff established its prima facie entitlement to judgment as a matter of law by demonstrating that the necessary billing forms were mailed to and received by the defendant, and that payment of the no-fault benefits was overdue (see New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019 [2007]; Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]). However, in response, the defendant raised a triable issue of fact as to whether the benefits were overdue (cf. A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779, 780-781 [2007]; New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832, 833 [2007]). The defendant provided evidence showing that the plaintiff’s claim for the benefits was timely denied on the ground that the plaintiff submitted the billing forms more than 45 days after the last date of medical service (see 11 NYCRR 65-1.1, 65-3.3 [e]; St. Vincent’s Hosp. & Med. Ctr. v Country Wide Ins. Co., 24 AD3d 748, 749 [2005]; NY Arthroscopy & Sports Medicine PLLC v Motor Veh. Acc. Indem. Corp., 15 Misc 3d 89, 90 [2007]).

The defendant’s remaining contentions have been rendered academic in light of our determination. Spolzino, J.P., Ritter, Covello and Dickerson, JJ., concur.