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

Bryan M. Rothenberg, Hicksville, N.Y. (Fiedelman & McGaw [Ross P. Masler] of counsel), for respondent.

In an action to recover no-fault insurance medical benefits, the plaintiff appeals from an order of the Supreme Court, Nassau County (Alpert, J.), dated November 20, 2006, which granted that branch of the defendant’s motion which was pursuant to CPLR 317 to vacate a judgment of the same court entered March 8, 2005, upon its default in answering, and denied its motion to punish the defendant for contempt of court based on its failure to respond to an information subpoena.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in granting that branch of the defendant’s motion which was to vacate the default judgment pursuant to CPLR 317 (see CPLR 317; Franklin v 172 Aububon Corp., 32 AD3d 454, 455 [2006]; Rios v Starrett City, Inc., 31 AD3d 418 [2006]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 968 [2006]). The Supreme Court properly denied the plaintiff’s motion to punish the defendant for contempt. Rivera, J.P., Spolzino, Fisher, Lifson and Dickerson, JJ., concur.

—[*1] Serpe, Andree & Kaufman (Rivkin Radler, LLP, Uniondale, N.Y. [Evan H. Krinick, Cheryl F. Korman, and Stuart M. Bodoff] of counsel), for appellant.

Ruffo, Tabora, Mainello & McKay, Lake Success, N.Y. (John F. McKay III and Michael Patigalia of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration, the appeal is from an order of the Supreme Court, Nassau County (Brandveen, J.), dated May 24, 2006, which granted the petition.

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

On July 29, 2002 an insured of State Farm Insurance Companies (hereinafter State Farm) was in a vehicle which was struck by a vehicle owned by the City of Long Beach (hereinafter Long Beach). State Farm paid its insured no-fault benefits. State Farm then sought to recover such benefits from Long Beach’s insurer, Specialty National Insurance Company (hereinafter Specialty National), initiating arbitration pursuant to Insurance Law § 5105. In response, Long Beach commenced this proceeding to permanently stay the arbitration. State Farm appeals from the order of the Supreme Court granting the petition. We reverse.

An arbitration proceeding pursuant to Insurance Law § 5105 is to be commenced within three years of the accrual of an insurer’s claim (see Conception v Hew Cab Corp., 114 AD2d 880, 880-881 [1985]; see also Matter of Pacific Ins. Co. v State Farm Mut. Auto. Ins. Co., 150 AD2d 455, 456 [1989]; cf. Matter of Liberty Mut. Ins. Co. v State Farm Mut. Auto. Ins. Co., 265 AD2d 412 [1999]). Here, [*2]pursuant to Insurance Law § 5105, State Farm initiated arbitration approximately two years after the subject accident and, thus, well before the expiration of the applicable limitations period (see CPLR 214 [2]). Therefore, the Supreme Court improperly granted Long Beach’s petition based on the application of the one-year and 90-day statute of limitations of General Municipal Law § 50-i.

Long Beach’s remaining contentions are without merit. Miller, J.P., Ritter, Covello and McCarthy, JJ., concur.

—[*1] Short & Billy, New York, N.Y. (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 certain contracts of insurance, the defendant appeals from an order of the Supreme Court, Nassau County (Palmieri, J.), dated May 12, 2006, which granted the motion of the plaintiff Nyack Hospital, as assignee of Flora Schnee, for summary judgment on the second cause of action.

Ordered that the order is reversed, on the law, with costs, and the motion of the plaintiff Nyack Hospital, as assignee of Flora Schnee, for summary judgment on the second cause of action is denied.

In support of its motion for summary judgment on the second cause of action, the plaintiff Nyack Hospital, as assignee of Flora Schnee (hereinafter Nyack), made a prima facie showing of entitlement to judgment as a matter of law by submitting, inter alia, the requisite billing form, a certified mail receipt referencing the patient, a signed return receipt card also referencing the patient, and an affidavit of its biller attesting to the facts that, among other things, the defendant Government Employees Insurance Company (hereinafter GEICO) failed to either pay the bill or issue a timely denial of claim form in 30 days (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 34 AD3d 532 [2006]). However, in opposition to the motion, GEICO raised triable issues of fact by demonstrating that it timely requested medical verification of the claim, and timely denied it based upon a peer review report concluding that the subject treatment was the result of a preexisting [*2]medical condition and did not arise from a no-fault-covered accident (see Insurance Law § 5102 [a] [1], [b]; 11 NYCRR 65-3.8 [a] [1]; [b] [4]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492 [2006]). Accordingly, the Supreme Court should have denied Nyack’s motion for summary judgment on the second cause of action.

Contrary to the Supreme Court’s conclusion, GEICO was not required to set forth a medical rationale in its denial of claim form. The applicable regulations provide that if a no-fault claim is denied in whole or in part based on a medical examination or peer review report requested by the insurer, then the insurer shall release a copy of that report to, among others, the applicant or its attorney, upon written request (see 11 NYCRR 65-3.8 [b] [4]). Had it been the intent of the Department of Insurance to require the carrier to set forth a medical rationale in the prescribed denial of claim form (see NYS Form N-F 10; 11 NYCRR 65-3.4 [c] [11]), it would have so provided (see A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779 [2007] [decided herewith]; A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 39 AD3d 778 [2007] [decided herewith]).

We decline GEICO’s request to search the record and award summary judgment in its favor on the second cause of action (see Gonzalez v Plain Edge High School Dist., 300 AD2d 540 [2002]).

GEICO’s remaining contention is improperly raised for the first time on appeal (see Castro v Homsun Corp., 34 AD3d 616 [2006]).

Motion by the respondent Nyack Hospital, as assignee of Flora Schnee, on an appeal from an order of the Supreme Court, Nassau County, dated May 12, 2006, to strike Point III of the appellant’s brief, and the addendum thereto, on the ground that they contain and refer to material dehors the record. By decision and order on motion of this Court dated January 12, 2007, the motion was held in abeyance and referred to the Justices hearing the appeal for determination upon the argument or submission of the appeal.

Upon the papers filed in support of the motion, the papers filed in opposition thereto, and upon the argument of the appeal, it is, [*3]

Ordered that the motion is denied. Miller, J.P., Santucci, Florio and Lifson, JJ., concur.

—[*1] Bee Ready Fishbein Hatter & Donovan LLP, Mineola, N.Y. (Joshua M. Jemal, Robert E. Fekete, and Peter A. Bee of counsel), for appellant.

Marylou A. Paolucci, Smithtown, N.Y., for respondent.

In an action to recover no-fault benefits under an insurance contract, the defendant appeals, by permission, as limited by its brief, from so much of an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated November 21, 2005, as reversed so much of an order of the Civil Court of the City of New York, Kings County (E. Spodek, J.), dated June 30, 2004, as denied that branch of the motion of the plaintiff A.B. Medical Services, PLLC, which was for summary judgment on the cause of action to recover the sum of $1,999.12, and granted that branch of the motion.

Ordered that the order dated November 21, 2005, is reversed insofar as appealed from, on the law, with costs, and the order of the Civil Court of the City of New York, Kings County, dated June 30, 2004, is affirmed insofar as it was appealed from.

To the extent the Appellate Term’s order may be understood to require an insurer denying a claim for first-party no-fault benefits on the ground of lack of medical justification to include a medical rationale in its denial of claim form, we agree with the defendant that the court erred. The applicable regulations provide that if a no-fault claim is denied in whole or in part based on a medical examination or peer review report requested by the insurer, then the insurer shall release a copy of that report to, among others, the applicant or its attorney, upon written request (see 11 NYCRR 65-3.8 [b] [4]). Had it been the intent of the Department of Insurance to require the [*2]carrier to set forth a medical rationale in the prescribed denial of claim form (see NYS Form N-F 10; 11 NYCRR 65-3.4 [c] [11]), it would have so provided (see A.B. Med. Servs. v GEICO Cas. Ins. Co., 39 AD3d 778 [2007] [decided herewith]; New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832 [2007] [decided herewith]).

While the plaintiff A.B. Medical Services, PLLC (hereinafter A.B. Medical), made a prima facie showing of entitlement to judgment as a matter of law by submitting evidentiary proof that the prescribed statutory billing forms were mailed and received, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743 [2004]), in response, the defendant raised a triable issue of fact with respect to its argument that the claimed benefits were properly denied on the ground of lack of medical justification (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Accordingly, the Civil Court of the City of New York correctly denied that branch of A.B. Medical’s motion which was for summary judgment on the cause of action to recover the sum of $1,999.12. Miller, J.P., Santucci, Florio and Lifson, JJ., concur.

—[*1] Short & Billy, New York, N.Y. (Skip Short of counsel), for appellant.

Amos Weinberg, Great Neck, N.Y., for respondent.

In an action to recover 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 April 6, 2006, which modified an order of the Civil Court of the City of New York, Kings County (R. Garson, J.), dated May 17, 2004, granting the plaintiff’s motion for summary judgment awarding the sum of $4,061.96, plus interest and an attorney’s fee, to provide that the plaintiff’s motion for summary judgment was granted only to the extent of awarding the plaintiff the sum of $3,971.20, and remitting the matter for the calculation of interest and an assessment of an attorney’s fee.

Ordered that the order of the Appellate Term is reversed, on the law, with costs, the order of the Civil Court of the City of New York, Kings County, is reversed, and the plaintiff’s motion for summary judgment is denied.

Under the circumstances presented, the plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; cf. Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 34 AD3d 532 [2006]). Accordingly, the plaintiff’s motion for summary judgment should have been denied regardless of the sufficiency of the opposing papers (see Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]).

Even assuming the plaintiff had made a prima facie showing of entitlement to summary judgment, we conclude that the defendant succeeded in raising a triable issue of fact in [*2]response (see Alvarez v Prospect Hosp., supra). For the reasons set forth in A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co. (39 AD3d 779 [2007] [decided herewith]), and New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co. (39 AD3d 832 [2007] [decided herewith]), we disagree with the Appellate Term’s conclusion that the defendant’s denial of claim forms were insufficient because they failed to set forth with sufficient particularity the factual basis and medical rationale upon which they were based. The applicable regulations provide that if a no-fault claim is denied in whole or in part based on a medical examination or peer review report requested by the insurer, then the insurer shall release a copy of that report to, among others, the applicant or its attorney, upon written request (see 11 NYCRR 65-3.8 [b] [4]). Had it been the intent of the Department of Insurance to require the carrier to set forth a medical rationale in the prescribed denial of claim form (see NYS Form N-F 10; 11 NYCRR 65-3.4 [c] [11]), it would have so provided.

In light of the foregoing determination, we need not address the defendant’s remaining contentions. Miller, J.P., Santucci, Florio and Lifson, JJ., concur.

—[*1] Russo, Keane & Toner, LLP, New York, N.Y. (David S. Gould of counsel), for appellant.

In a proceeding pursuant to CPLR article 75, inter alia, to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Kings County (Kramer, J.), dated January 5, 2006, which granted that branch of the motion of the respondent Daniel Davalos which was for reargument of the petition, which had been granted in an order of the same court dated August 15, 2005, and upon reargument, denied that branch of the petition which was to permanently stay arbitration, and, in effect, denied that branch of the petition which was, in effect, to add Allstate Insurance, Sebastian Gutierrez Meza, and Daniel Ashley as additional respondents.

Ordered that the order is modified, on the law, by deleting the provisions thereof which, upon reargument, denied that branch of the petition which was to permanently stay arbitration, and, in effect, denied that branch of the petition which was, in effect, to add Allstate Insurance, Sebastian Gutierrez Meza, and Daniel Ashley as additional respondents, and substituting therefor a provision granting that branch of the petition which was, in effect, to add Allstate Insurance, Sebastian Gutierrez Meza, and Daniel Ashley as additional respondents; as so modified, the order is affirmed, without costs or disbursements, and the matter is remitted to the Supreme [*2]Court, Kings County, for an evidentiary hearing on the issue of whether Allstate Insurance validly disclaimed coverage of the offending vehicle for the subject accident and for a new determination thereafter of that branch of the petition which was to permanently stay arbitration.

“Motions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some other reason mistakenly arrived at its earlier decision” (E.W. Howell Co., Inc. v S.A.F. La Sala Corp., 36 AD3d 653, 654 [2007] [internal quotation marks omitted]; see Marini v Lombardo, 17 AD3d 545 [2005]; Carrillo v PM Realty Group, 16 AD3d 611 [2005]; Viola v City of New York, 13 AD3d 439 [2004]). Contrary to the petitioner’s contention, the Supreme Court providently exercised its discretion in granting reargument to consider whether its original determination to permanently stay arbitration was proper in light of a recent Court of Appeals decision that had been overlooked.

Furthermore, upon granting reargument, the court properly concluded that the petitioner was not entitled to a stay of arbitration based upon the failure of the respondent Daniel Davalos to provide notice of his claim for uninsured motorist benefits “as soon as practicable” as required by the supplementary uninsured/underinsured motorist (hereinafter SUM) endorsement of the subject insurance policy. Where, as here, timely notice of an accident has been given and the injured claimant has applied for no-fault benefits, an insurer cannot disclaim coverage under a SUM endorsement unless it establishes that it has been prejudiced by late notice of the SUM claim (see Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468 [2005]; Matter of Nationwide Mut. Ins. Co. v Perlmutter, 32 AD3d 947 [2006]; Matter of State Farm Mut. Auto. Ins. Co. v Rinaldi, 27 AD3d 476 [2006]). Timely notice of the accident is “sufficient to promote the valid policy objective of curbing fraud or collusion” underlying notice requirements (see Rekemeyer v State Farm Mut. Auto. Ins. Co., supra at 475). Although the petitioner argues that the rationale of the Court of Appeals in Rekemyer v State Farm Mut. Auto. Ins. Co. (supra), should be limited to claims for underinsured motorist benefits, we find it equally applicable to claims for uninsured motorist benefits made pursuant to a SUM endorsement. Since the petitioner has not claimed any prejudice arising from the late notice of the SUM claim, the court correctly determined that it is not entitled to a stay of arbitration on this ground.

However, the court should have added Allstate Insurance (hereinafter Allstate) and the owner and operator of the offending vehicle as additional respondents. In support of its petition, inter alia, to permanently stay arbitration of Davalos’s claim for uninsured motorist benefits, the petitioner submitted the police accident report which contained the offending vehicle’s insurance code designation, and Allstate’s letter disclaiming coverage to the owner of the offending vehicle based upon his alleged noncooperation. This proof raised a question of fact as to whether Allstate validly disclaimed coverage of the offending vehicle (see Matter of New York Cent. Mut. Fire Ins. Co. v Hall, 7 AD3d 629 [2004]; Matter of Eagle Ins. Co. [Villegas—State Farm Mut. Auto. Ins. Co.], 307 AD2d 879 [2003]; Matter of Allstate Ins. Co. v Anderson, 303 AD2d 496 [2003]; Matter of Lumbermens Mut. Cas. Co. v Beliard, 256 AD2d 579 [1998]). Accordingly, we remit the matter to the Supreme Court, Kings County, for an evidentiary hearing on the issue of whether Allstate validly disclaimed coverage of the offending vehicle for the subject acccident (see Matter of New York Cent. Mut. Fire Ins. Co. v Hall, supra; Matter of Lumbermens Mut. Cas. Co. v Beliard, supra). Santucci, J.P., Krausman, Lifson and Dillon, JJ., concur.

—[*1] Siben & Siben, LLP, Bay Shore, N.Y. (Shayne, Dachs, Stanisci, Corker & Sauer [Jonathan A. Dachs] of counsel), for appellant.

Cullen and Dykman, LLP, Brooklyn, N.Y. (Joseph Miller of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to stay arbitration of a claim for underinsured motorist benefits, Mark W. Ward appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (Henry, J.), dated March 31, 2005, which granted the petition and permanently stayed the arbitration.

Ordered that the order and judgment is reversed, on the law, without costs or disbursements, the petition is denied, and the proceeding is dismissed.

The appellant was injured in an automobile accident, at which time the appellant’s vehicle was insured under a policy issued by New York Central Mutual Fire Insurance Company (hereinafter the petitioner). The policy provided, inter alia,

“II. Damages for Bodily Injury Caused by Uninsured Motor Vehicles

“We will pay all sums that the insured or the insured’s legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, caused by an accident arising out of such uninsured motor vehicle’s ownership, maintenance or use, subject to the Exclusions, Conditions, Limits and other provisions of this SUM endorsement . . .

[*2]“V. Part E—DUTIES AFTER AN ACCIDENT OR LOSS, Part E is replaced by the following: DUTIES AFTER AN ACCIDENT OR LOSS, We have no duty to provide coverage under this policy if the failure to comply with the following duties is prejudicial to us: A: We must be notified as soon as reasonably possible of how, when and where the accident or loss happened. Notice should also include the names and addresses of any injured persons and of any witnesses.”

It is well settled that a contract of insurance is no different from any other contract and must be construed in a fair and reasonable manner, having regard to the risk and subject matter of the policy, and that special rules such as liberal construction in favor of the insured and against the insurer who drew the contract apply (see Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321 [1996]; Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 60 NY2d 390 [1983]; General Assur. Co. v Schmitt, 265 AD2d 299, 300 [1999] [internal quotation marks omitted] [“The law is clear that if an insurance policy is written in such language as to be doubtful or uncertain in its meaning, all ambiguity must be resolved in favor of the insured against the insurer”]).

In the present case, the petitioner clearly assumed a contractual obligation to provide coverage for the appellant unless the appellant’s failure to comply with his contractual duties is prejudicial to it. Here, the appellant substantially complied with the policy’s notice and proof of claim conditions insofar as he supplied the petitioner with prompt written notice of the accident, an application for no fault benefits, a sworn police accident report, and authorizations to obtain medical records. The petitioner demonstrated no prejudice in this matter stemming from the appellant’s failure to submit the proffered proof of claim form (see Matter of Nationwide Mut. Ins. Co. [Mackey], 25 AD3d 905 [2006] [the insured’s attorney supplied prompt written notice of the accident, made a claim for no-fault benefits, and indicated that SUM coverage was implicated. Written notice regarding a SUM claim was repeated at least twice over the ensuing six months. The insured forwarded to the insurer the police accident report as well as the pertinent medical records. The insurer did not deny receiving any of these various letters and documents from the insured. The insurer failed to show any prejudice and, under the circumstances, was not permitted to disclaim SUM coverage]).

This Court has held that where an insurance policy is conditioned upon the insured’s timely completion and return of proof of claim forms, the insured’s failure to do so, or to have a reasonable excuse for the failure, is a breach of a condition precedent that vitiates coverage and justifies a permanent stay of arbitration (see Matter of New York Cent. Mut. Fire Ins. Co. v Daley, 273 AD2d 315 [2000]; Matter of New York Cent. Mut. Fire Ins. Co. v Shepard, 249 AD2d 549 [1998]).

For many years, New York has followed the rule that an insured’s failure to provide timely notice of an accident relieves the carrier of its obligation to perform, regardless of whether it can demonstrate prejudice (see Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 442-443 [1972]). This has been known as the no-prejudice rule.

Recently, there has been a shift away from the no-prejudice rule. In Matter of Brandon (Nationwide Mut. Ins. Co.) (97 NY2d 491 [2002]), the Court required a supplementary uninsured/underinsured motorists (hereinafter SUM) insurer to demonstrate prejudice when seeking to disclaim coverage based upon untimely notice of legal action. The Court stated that, “Under these circumstances, and given the protection SUM insurers already enjoy by virtue of the notice of claim requirement and the clauses governing settlement, insurers relying on the late notice of legal action [*3]defense should be required to demonstrate prejudice. We place the burden of proving prejudice on the insurer because it has the relevant information about its own claims-handling procedures and because the alternative approach would saddle the policyholder with the task of proving a negative” (id. at 498).

Since the issuance of the order and judgment appealed from, the Court of Appeals has reaffirmed this shift away from the no-prejudice rule. In Rekemeyer v State Farm Mut. Auto. Ins. Co. (4 NY3d 468, 474-476 [2005]), the Court stated, “Plaintiff also urges this Court to relax its application of the no-prejudice rule in SUM cases where the carrier has been timely put on notice of the accident. This argument is persuasive. The rule in New York has been for years that an insured’s failure to provide timely notice of an accident relieves the carrier of its obligation to perform regardless of whether it can demonstrate prejudice (see Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 442-443 [1972]). This rule is known as the no-prejudice rule. Although this rule has sometimes been characterized as the ‘traditional rule,’ it is actually a limited exception to two established contract principles; ‘ (1) that ordinarily one seeking to escape the obligation to perform under a contract must demonstrate a material breach or prejudice; and (2) that a contractual duty [requiring strict compliance] ordinarily will not be construed as a condition precedent absent clear language showing that the parties intended to make it a condition’ (Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576, 581 [1992] [citations omitted]). The idea behind strict compliance with the notice provision in an insurance contract was to protect the carrier against fraud or collusion (see id.) . . .The facts of the current case, while different from Brandon, also warrant a showing of prejudice by the carrier. Here, plaintiff gave timely notice of the accident and made a claim for no-fault benefits soon thereafter. That notice was sufficient to promote the valid policy objective of curbing fraud or collusion. Moreover, the record indicates that State Farm undertook an investigation of the accident. It also required plaintiff to undergo medical exams in December 1998 and February 2000. Under these circumstances, application of a rule that contravenes general contract principles is not justified. Absent a showing of prejudice, State Farm should not be entitled to a windfall (Brandon, 97 NY2d at 496 n 3, citing Clementi v Nationwide Mut. Fire Ins. Co., 16 P3d 223, 230 [Colo 2001]). Additionally, State Farm should bear the burden of establishing prejudice ‘because it has the relevant information about its own claims-handling procedures and because the alternative approach would saddle the policyholder with the task of proving a negative’ (id. at 498; see also Unigard, 79 NY2d at 584 [placing the burden of showing prejudice on the reinsurer])”

Recently, this Court followed the Rekemeyer decision in Matter of State Farm Mut. Auto. Ins. Co. v Rinaldi (27 AD3d 476 [2006]) and reversed an order granting the insurer’s petition for a stay on the basis that the insurer had received timely notice of the accident and therefore was required to demonstrate prejudice. “Where, as 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 [*4]properly disclaim coverage’ (Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468, 476 [2005]). No such showing of prejudice was made by the carrier in this case” (Matter of State Farm Mut. Auto. Ins. Co. v Rinaldi, supra at 476-477).

In the present case, the appellant argues that the notice of claim exception to the no-prejudice rule set forth by the Court in Rekemeyer should now be extended to apply to proof of claim. We agree.

Here, the facts, as in Rekemeyer, warrant a showing of prejudice by the insurance carrier. The petitioner did not meet this burden of showing that the appellant’s failure to comply with his contractual duties was prejudicial to it. Therefore, the petitioner was bound by its contractual duty to provide coverage for the appellant, and the court erred in granting the petition and permanently staying the arbitration.

The appellant’s remaining contentions that the petitioner failed to timely disclaim coverage and that it waived its right to rely on the subject provision are improperly raised for the first time on appeal and we decline to consider them. Ritter, J.P., Santucci, Skelos and Dickerson, JJ., concur.

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

Epstein, Rayhill & Frankini, Woodbury, N.Y. (James Frankini and Frank Marotta of counsel), for respondent.

In an action to recover no-fault medical payments under contracts of insurance, the plaintiffs appeal from an order of the Supreme Court, Nassau County (McCarty, J.), dated August 2, 2006, which denied the motion of the plaintiff Montefiore Medical Center, as assignee of Sherice Haye, for summary judgment in its favor on the first cause of action.

Ordered that the appeal by the plaintiff New York and Presbyterian Hospital, as assignee of Haydee Marca, is dismissed, as that plaintiff is not aggrieved by the order appealed from (see CPLR 5511), and it is further,

Ordered that the order is affirmed; and it is further,

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

Contrary to the contention of the plaintiff Montefiore Medical Center, as assignee of Sherice Haye (hereinafter Montefiore), the Supreme Court properly denied its motion for summary judgment in its favor on the first cause of action. In response to Montefiore’s prima facie showing of entitlement to judgment as a matter of law (see generally Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., [*2]32 AD3d 458 [2006]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]), the defendant submitted the hospital records of the patient and other material which raised a triable issue of fact as to whether the condition for which the patient was treated was unrelated to her motor vehicle accident (see generally St. Luke’s Roosevelt Hosp. v Allstate Ins. Co., 303 AD2d 743 [2003]). Accordingly, a triable issue of fact exists regarding whether the defendant’s denial of no-fault benefits in this case was proper.

Montefiore’s remaining contentions are without merit. Mastro, J.P., Florio, Carni and McCarthy, JJ., concur.

—[*1] Martin, Fallon & Mullé, Huntington, N.Y. (Richard C. Mullé and Stephen P. Burke of counsel), for appellant.

Spiegel & Barbato, LLP, Bronx, N.Y. (Brian C. Mardon of counsel), for respondent William Tubis.

In a proceeding pursuant to CPLR article 75 to stay the arbitration of an uninsured motorist claim, the petitioner appeals from a judgment of the Supreme Court, Queens County (Rios, J.), dated May 30, 2006, which, after a hearing, denied the petition and dismissed the proceeding.

Ordered that the judgment is reversed, on the law, with costs payable by the respondent William Tubis, the petition is granted, and the arbitration is permanently stayed.

In December 1997 the respondent William Tubis allegedly sustained injuries in an automobile accident with a vehicle insured by Legion Insurance Company (hereinafter Legion). On March 12, 1998 Tubis applied for no-fault benefits under his own insurance policy with the petitioner State Farm Mutual Automobile Insurance Company (hereinafter State Farm). He simultaneously requested uninsured/underinsured motorist benefits from State Farm, although any claim for uninsured motorist benefits was premature at that time since Tubis had no knowledge that the offending vehicle was uninsured (see Matter of State Farm Mut. Auto. Ins. Co. v Linero, 13 AD3d 546 [2004]).

Tubis thereafter commenced a personal injury action against Legion’s insured. However, by orders dated June 26, 2003 and July 25, 2003, the Commonwealth Court of the [*2]Commonwealth of Pennsylvania declared Legion insolvent, and appointed the Insurance Commissioner of the Commonwealth of Pennsylvania as Legion’s liquidator and receiver (see Koken v Legion Ins. Co., 831 A2d 1196 [Pa 2003], affd sub nom. Koken v Villanova Ins. Co., 583 Pa 400, 878 A2d 51 [2005]). By order dated August 22, 2003, the Supreme Court, New York County, placed Legion in liquidation in the state of New York and stayed all legal proceedings with respect to it.

On May 12, 2004 Tubis mailed State Farm a demand for arbitration of an uninsured motorist claim arising out of the 1997 accident, but the demand did not mention or refer to Legion’s liquidation. On June 15, 2004 State Farm commenced this proceeding to stay the arbitration, contending that the claim was time-barred because more than six years had elapsed since both the date of the accident and Tubis’s March 1998 claim for uninsured motorist benefits. In opposition, Tubis contended that his claim for uninsured motorist benefits was not untimely, since it actually did not accrue until July 2003, when Legion went into receivership in Pennsylvania, and the offending vehicle consequently became uninsured. In reply, State Farm asserted that it first became aware of the insolvency and liquidation of Legion from the papers submitted by Tubis in opposition to its petition, and disclaimed coverage on the ground that notice of the uninsured motorist claim based on Legion’s insolvency was not provided “[a]s soon as practicable” as required by the policy of insurance. State Farm subsequently was granted leave to supplement the petition to include, inter alia, the late notice as an additional basis for denial of the claim.

Following a framed-issue hearing, the Supreme Court denied the petition and dismissed the proceeding, finding that State Farm failed to timely disclaim on the ground that notice of the claim was not given “as soon as practicable,” since State Farm did not raise the issue of late notice by Tubis until it submitted its supplemental petition. We reverse.

Tubis clearly became aware of Legion’s insolvency, and of his corresponding right to submit a claim for uninsured motorist benefits in mid-to-late 2003, when orders were entered declaring Legion insolvent and appointing a receiver with respect to it. However, Tubis did not assert such a claim and a demand for arbitration until May 12, 2004. Tubis failed to comply with his obligation under the policy to provide notice of the claim “as soon as practicable,” his delay was substantial, and his demand for arbitration was untimely as a matter of law (see Great Canal Realty Corp. v Seneca Ins. Co., Inc., 5 NY3d 742 [2005]; Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468 [2005]; Matter of Hartford Ins. Co. of Midwest v Gamiel, 34 AD3d 244 [2006]; Matter of Interboro Mut. Indem. Ins. Co. v Brown, 300 AD2d 660 [2002]). Furthermore, State Farm was not made aware of Legion’s insolvency as the basis for the uninsured motorist benefits claim until Tubis filed papers in opposition to State Farm’s petition to stay arbitration. State Farm submitted reply papers promptly thereafter, which unequivocally disclaimed coverage on the ground that Tubis failed to provide timely notice under the policy, thereby satisfying its statutory obligation to timely disclaim (see Insurance Law § 3420 [d]; Matter of Allcity Ins. Co. [Jimenez], 78 NY2d 1054 [1991]; Matter of New York Cent. Mut. Fire Ins. Co. v Gonzalez, 34 AD3d 816 [2006]; Matter of American Cas. Ins. Co. v Silverman, 271 AD2d 528 [2000]; Matter of State Farm Ins. Co. v Velasquez, 211 AD2d 636 [1995]; Matter of Aetna Cas. & Sur. Co. v Scirica, 170 AD2d 448 [1991]). Accordingly, the Supreme Court erroneously concluded that State Farm failed to timely disclaim, and the petition to stay arbitration should have been granted. Mastro, J.P., Krausman, Florio and Balkin, JJ., concur.

—[*1] Quadrino & Schwartz, P.C., Garden City (Harold J. Levy of counsel), for appellants.

Thomas Torto, New York, for respondent.

Order, Supreme Court, New York County (Debra A. James, J.), entered November 9, 2005, which granted defendant’s motion pursuant to CPLR 3211 (a) to dismiss the complaint and denied plaintiffs’ cross motion for summary judgment and to amend the complaint, unanimously affirmed, without costs.

In their cross motion, plaintiffs never sought leave to amend the complaint to plead the essential elements of a cause of action to recover no-fault benefits for specific claims, or to replead the class action. Therefore, their argument for the right to replead is not properly before this Court. In any event, since the complaint and any proposed amendment were based on the same defective legal theory, the court did not err in dismissing the complaint for failure to state a cause of action and denying leave to amend because the “insufficiency or lack of merit is clear and free from doubt” (Noanjo Clothing v L & M Kids Fashion, 207 AD2d 436, 437 [1994]).

The court properly found that nurses’ reviews denying no-fault claims for lack of medical necessity were not per se invalid, since a nurse’s peer review may be competent to establish the admissibility of the medical opinions and conclusions provided that the reviewer’s training, observations and actual experience to render such opinions are sufficiently set forth (see People v Lewis, 16 AD3d 173 [2005], lv denied 4 NY3d 888 [2005]; Patil v Countrywide Ins. Co., 11 Misc3d 130[A], 2006 NY Slip Op 50306[U] [App Term 2006]).

We have considered plaintiffs’ remaining arguments and find them without merit. Concur—Andrias, J.P., Saxe, Sullivan, Gonzalez and McGuire, JJ.