—[*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.

—[*1] Jaffe & Koumourdas, New York, N.Y. (Jean H. Kang of counsel), for appellant.

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

In an action to recover no-fault medical payments, the defendant appeals from a judgment of the Supreme Court, Nassau County (Jonas, J.), entered August 23, 2006, which, upon an order of the same court dated August 14, 2006, granting the plaintiff’s motion for summary judgment on the complaint and denying its cross motion for summary judgment dismissing the first cause of action, is in favor of the plaintiff and against it in the principal sum of $13,491.40.

Ordered that the judgment is affirmed, with costs.

In support of its motion for summary judgment, the plaintiff demonstrated its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the requisite billing forms, the affidavits from its billers, as well as the certified mail receipts, and the signed return receipt cards which referenced the patients and the forms (see New York & Presbyt. Hosp. v Travelers Prop. Cas. Ins. Co., 37 AD3d 683 [2007]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 34 AD3d 532 [2006]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493 [2006]). This evidence demonstrated that the defendant received proof of the claims and failed to pay the bills or issue a denial of claim form within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a]).

In opposition to the plaintiff’s motion, the defendant failed to raise a triable issue of fact, and in support of its cross motion for summary judgment dismissing the first cause of action, the defendant failed to make a prima facie showing of its entitlement to judgment as a matter of law. The defendant contended that the claim for payment with respect to the first cause of action was [*2]premature because the plaintiff had failed to respond to its verification requests (see 11 NYCRR 65-3.5 [b]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]). The defendant submitted the affidavit of a supervisor employed in its claims department, which stated, with respect to the first cause of action, that a timely verification request was mailed on August 11, 2005, and a follow-up request was mailed on September 10, 2005. The supervisor, however, had no personal knowledge that the verification requests were actually mailed on the dates they were issued, and her conclusory allegations regarding the defendant’s office practice and procedure failed to establish that the practice and procedure was designed to ensure that the verification requests were addressed to the proper party and properly mailed (see Matter of Phoenix Ins. Co. v Tasch, 306 AD2d 288 [2003]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]; Matter of Government Empls. Ins. Co. [Hartford Ins. Co.], 112 AD2d 226, 227-228 [1985]). The defendant’s submissions were insufficient to create a presumption that the verification requests were received by the proper party (see Matter of Gonzalez [Ross], 47 NY2d 922, 923 [1979]; Nassau Ins. Co. v Murray, 46 NY2d 828 [1978]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547 [2006]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d at 568; Matter of Phoenix Ins. Co. v Tasch, 306 AD2d 288 [2003]). Furthermore, the defendant’s failure to timely object to the completeness of the assignment of benefits forms or to seek verification of the assignments constituted a waiver of any defenses based thereon (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 34 AD3d 532 [2006]; Nyack Hosp. v Encompass Ins. Co., 23 AD3d 535 [2005]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]). Accordingly, the Supreme Court properly granted the motion and denied the cross motion. Spolzino, J.P., Krausman, Carni and Dickerson, JJ., concur.

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

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

In an action to recover no-fault medical payments under a certain insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Martin, J.), dated March 30, 2007, which denied its motion for summary judgment on the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff contended, in its motion for summary judgment on the complaint, that it mailed a single “NF-5” claim form dated March 8, 2006, to the defendant, that such form was received by the defendant on March 9, 2006 and that an “NF-10” denial of claim form dated March 23, 2006, issued by the defendant in response, was not sufficiently specific to constitute a valid denial (see generally New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., 32 AD3d 458 [2006]; see also Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]). The plaintiff further argued that the defendant, having failed to serve a sufficient “NF-10” denial of claim form within the critical 30-day post-receipt-of-claim period, should be precluded from denying the claim (see generally Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; St. Vincent’s Hosp. & Med. Ctr. v Nationwide Mut. Ins. Co., 42 AD3d 523 [2007]; Westchester Med. Ctr. v Safeco Ins. Co. of Am., 40 AD3d 984 [2007]).

We agree with the Supreme Court that the plaintiff’s moving papers failed to establish that the “NF-10” denial of claim form was so vague or deficient as to not qualify as a proper response under 11 NYCRR 65-3.4 (c) (11). Moreover, the “NF-10” denial of claim form was issued within 30 [*2]days as required by Insurance Law § 5106 (a) and 11 NYCRR 65-3.8 (c) (1) (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d at 278; St. Vincent’s Hosp. & Med. Ctr. v Nationwide Mut. Ins. Co., 42 AD3d at 524). Accordingly, the plaintiff failed to establish, prima facie, its entitlement to summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]), and we need not reach the sufficiency of the defendant’s opposing papers (see Ayotte v Gervasio, 81 NY2d 1062 [1993]).

In light of our determination, we decline to take judicial notice of certain diagnostic codes contained on the “UB-92” form.

Motion by the appellant on an appeal from an order of the Supreme Court, Nassau County, dated March 30, 2007, to strike the respondent’s brief on the ground that it raises issues which were not raised before the Supreme Court, Nassau County. By decision and order on motion of this Court dated September 5, 2007, the motion was referred to the bench 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 the argument of the appeal, it is

Ordered that the motion is denied. Lifson, J.P., Dillon, Covello and McCarthy, JJ., concur.

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

Law Offices of Peter X. Dodge, P.C., Melville, N.Y. (Sean T. Carew and Alex Monroy of counsel), for respondent.

In an action to recover no-fault medical payments under insurance contracts, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Palmieri, J.), dated April 11, 2007, as denied that branch of their motion which was for summary judgment on the first cause of action to recover payments for medical services rendered by the plaintiff Hospital for Joint Diseases, as assignee of Tami Cohen, and, upon searching the record, awarded the defendant summary judgment dismissing the first cause of action.

Ordered that the appeals by the plaintiffs Westchester County Medical Center, as assignee of Iesa Rivera, and Mary Immaculate Hospital, as assignee of Dwayne Cumberbatch, are dismissed, as those plaintiffs are not aggrieved by the order appealed from (see CPLR 5511); and it is further,

Ordered that the order is affirmed insofar as appealed from by the plaintiff Hospital for Joint Diseases, as assignee of Tami Cohen; and it is further,

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

Pursuant to the statutory and regulatory framework governing the payment of no-fault automobile insurance benefits, insurance companies are required either to pay or deny a claim for benefits within 30 days of receipt of the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]). However, the 30-day period in which to pay or deny a claim may be extended where the insurer [*2]makes a request for additional information within 15 business days of its receipt of the claim (see 11 NYCRR 65-3.5 [b]; New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512, 513 [2006]; Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 434 [2004]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 569 [2004]), and an insurer is not obligated to pay or deny a claim until all demanded verification is provided (see Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889 [2007]; New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d at 513; Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]).

The plaintiff Hospital for Joint Diseases, as assignee of Tami Cohen (hereinafter the hospital) made a prima facie showing of its entitlement to judgment as a matter of law on the first cause of action to recover payment for medical services by submitting, inter alia, the requisite 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 pay the bill or issue a timely denial of claim form within 30 days (see 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, 683-684 [2007]; Westchester Med. Ctr. v AIG, Inc., 36 AD3d 900 [2007]). However, in opposition to the motion, the defendant submitted evidentiary proof that it timely requested additional information from the hospital to verify its claim, and that when the requested information was not received, it made a timely follow-up request. The defendant also offered unrebutted proof that the hospital ignored its verification requests. Since the requested verification was not provided, the 30-day period within which the defendant was obligated to pay or deny the hospital’s claim did not begin to run (see Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432 [2004]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 534-535 [2004]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555 [1999]), and the first cause of action was premature.

The hospital’s contention that the additional information which the defendant requested to verify its claim was improper or irrelevant is advanced for the first time on appeal, and thus is not properly before this Court (see Ozelkan v Tyree Bros. Envtl. Servs., Inc., 29 AD3d 877 [2006]; Hospital for Joint Diseases v Hertz Corp., 9 AD3d 391, 392 [2004]; St. Vincent’s Hosp. & Med. Ctr. v Allstate Ins. Co., 294 AD2d 425, 426 [2002]; Weber v Jacobs, 289 AD2d 226, 227 [2001]; St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641, 642 [1995]). Crane, J.P., Spolzino, Krausman and McCarthy, JJ., concur.

—[*1] Gary Tsirelman, P.C., Brooklyn, N.Y. (Max Valerio of counsel), for appellant.

Marshall & Marshall, Jericho, N.Y. (Craig B. Marshall of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an award of a master arbitrator dated September 15, 2005, confirming an award of an arbitrator dated June 24, 2005 denying payment of no-fault insurance benefits, the appeal is from an order of the Supreme Court, Kings County (Ruchelson, J.), dated June 22, 2006, which denied the petition and granted the respondent’s cross petition to confirm the award of the master arbitrator.

Ordered that the order is reversed, on the law, with costs, the awards of the master arbitrator and arbitrator are vacated, and the matter is remitted to the arbitrator for further proceedings consistent herewith.

The petitioner, Health & Endurance Medical, P.C. (hereinafter HEM), as assignee, sought payment of no-fault insurance benefits from the respondent, Deerbrook Insurance Company (hereinafter Deerbrook) for medical services provided to an insured by an independent contractor. After arbitration, payment was denied on the ground that HEM was not a provider of health care services within the meaning of the no-fault regulations and, therefore, was not entitled to direct payment of such benefits. That award was confirmed by a master arbitrator. The Supreme Court, inter alia, denied HEM’s petition to vacate the award of the master arbitrator. We reverse.

In relevant part, the no-fault regulations provide for direct payments of no-fault benefits to “providers of health care services” (11 NYCRR 65-3.11 [a]). Under the circumstances [*2]of this case, the applicability of 11 NYCRR 65-3.11 (a) was impermissibly raised, sua sponte, by the arbitrator (see 11 NYCRR 65-4.4 [e]). Since the arbitrator never ruled on the only issue raised by Deerbrook relating to the need for the services in question, this matter must be remitted to the arbitrator for a determination of this issue. Miller, J.P., Ritter, Goldstein and Dickerson, JJ., concur.

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

Martin, Fallon & Mullé, Huntington, N.Y. (Richard C. Mullé of counsel), for respondent.

In an action to recover no-fault benefits under an insurance contract, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (LaMarca, J.), dated January 5, 2007, as denied that branch of its motion which was for summary judgment on the first cause of action and granted that branch of the defendant’s cross motion which was for summary judgment dismissing that cause of action.

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

On or about January 29, 2006, Donald Gjelaj, the plaintiff’s assignor, was involved in a single-vehicle accident on a wet, curved roadway. After the accident, Gjelaj was arrested for driving while intoxicated. Gjelaj sought no-fault benefits under a policy of insurance issued by the defendant. The defendant sent a verification request dated January 31, 2006, to Gjelaj seeking additional information regarding his alleged intoxication. On or about February 10, 2006, Gjelaj responded to the request, including with his response copies of the traffic ticket issued after the accident charging him with driving while intoxicated and Gjelaj’s handwritten statement that he had “not gone to court yet” on the charge. On or about February 16, 2006, the defendant received a copy of the police accident report indicating that Gjelaj was arrested for driving while intoxicated at the [*2]scene of the accident. Within one week after receiving Gjelaj’s response, the defendant sought additional verification regarding Gjelaj’s intoxication from, among others, Arden Hill Hospital, where Gjelaj had been taken after the accident.

In the interim, on or about February 24, 2006, the defendant received a hospital facility form (NYS Form NF-5) from the plaintiff to recover no-fault benefits for services it rendered to Gjelaj, its assignor. By letters dated March 8, 2006, and April 11, 2006, the defendant advised the plaintiff that it was investigating the claim for possible intoxication and waiting for toxicology reports from either Arden or the New York State Police (hereinafter the State Police). On April 19, 2006, the defendant received, by facsimile from Gjelaj’s counsel, a copy of a blood alcohol test (hereinafter the BAC report) taken by the State Police which stated in the subject line Gjelaj’s name and the date of the accident, and reported a blood alcohol level of 0.13. The defendant sent the plaintiff a denial of claim on the ground of intoxication dated April 24, 2006.

When 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 (see Insurance Law § 5106 [a]; 11 NYCRR former 65.15 [g] [3]). “[W]hen an insurer believes that intoxication may have been a contributing cause to an accident, the insurer is entitled to all available information regarding the insured’s condition at the time of the accident” (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 279 [1997], citing 11 NYCRR former 65.15 [g] [7]). Pursuant to 11 NYCRR former 65.15 (g) (7), proof of a claim shall not be complete until the information which has been requested pursuant thereto has been furnished to the insurer by the applicant or the authorized representative.

“Within 10 business days after receipt of the completed application for motor vehicle no-fault benefits . . . or other substantially equivalent written notice, the insurer shall forward, to the parties required to complete them, those prescribed verification forms it will require prior to payment of the initial claims” (11 NYCRR 65-3.5 [a]). “Subsequent to the receipt of one or more of the completed verification forms, any additional verification required by the insurer to establish proof of claim shall be requested within 15 business days of receipt of the prescribed verification forms” (11 NYCRR 65-3.5 [b]). “The insurer is entitled to receive all items necessary to verify the claim directly from the parties from whom such verification was requested” (11 NYCRR 65-3.5 [c]).

The plaintiff made a prima facie showing of entitlement to summary judgment on its first cause of action to recover no-fault benefits by demonstrating that the prescribed statutory billing forms were mailed to and received by the defendant and that payment of no-fault benefits was overdue (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]). In opposition, however, the defendant raised a triable issue of fact that the verification requests seeking information regarding Gjelaj’s alleged intoxication were timely and properly sent to, among others, Gjelaj, the plaintiff’s assignor (see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569 [2005]; 11 NYCRR 65-3.5 [a], [b]; former 65.15 [g] [7]).

In addition, the defendant raised a triable issue of fact through its submission of the police accident report (hereinafter the PAR) that Gjelaj was intoxicated at the time of the accident and that such intoxication caused the accident. The PAR was properly considered by the Supreme Court under the business record exception to the hearsay rule to the extent that it was based upon the [*3]personal observations of the police officer present at the scene and under a business duty to make it (see CPLR 4518 [a]; Yeargans v Yeargans, 24 AD2d 280, 282 [1965]). Based upon the police officer’s personal observations and knowledge, Gjelaj’s vehicle left the roadway and struck a tree, and Gjelaj was arrested for driving while intoxicated. Thus, the Supreme Court properly denied the plaintiff’s motion for summary judgment.

However, the defendant failed to make out a prima facie showing on its cross motion for summary judgment (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In the first instance, the defendant was unable to establish, prima facie, that Gjelaj was intoxicated at the time of the accident (see Lynch v Progressive Ins. Co., 12 AD3d 570, 571 [2004]). The result of a blood alcohol test may be admitted on the issue of intoxication in litigation involving an exclusion in a no-fault policy provided that a proper foundation is laid (see Matter of Nyack Hosp. v Government Empls. Ins. Co., 139 AD2d 515 [1988]). At bar, the defendant failed to lay a proper foundation for admission of the BAC report by proffering any evidence regarding the care in the collection of Gjelaj’s blood sample and its analysis (see 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]). Thus, while the defendant raised a triable issue of fact regarding intoxication sufficient to defeat the plaintiff’s motion, on this record, it cannot establish intoxication as a matter of law. We note in this regard that although the BAC report was inadmissible to establish the defendant’s prima facie case on its cross motion (see generally Beyer v Melgar, 16 AD3d 532, 533 [2005]), the Supreme Court properly considered it in opposition to the plaintiff’s motion (see Zuckerman v City of New York, 49 NY2d 557 [1980]; Phillips v Kantor & Co., 31 NY2d 307 [1972]).

In addition, the defendant failed to establish, prima facie, that Gjelaj’s alleged intoxication was the proximate cause of the accident (see Lynch v Progressive Ins. Co., 12 AD3d 570, 571 [2004]; Scahall v Unigard Ins. Co., 222 AD2d 1070, 1071 [1995]; North v Travelers Ins. Co., 218 AD2d 901, 902 [1995]; Cernik v Sentry Ins., 131 AD2d 952 [1987]). Since the defendant failed to make a prima facie showing, the Supreme Court should have denied that branch of the defendant’s cross motion which was for summary judgment dismissing the first cause of action regardless of the sufficiency of the plaintiff’s opposing papers (see North v Travelers Ins. Co., 218 AD2d 901 [1995]; see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Schmidt, J.P., Santucci, Skelos and Balkin, JJ., concur.

—[*1] Jaffe & Koumourdas, New York, N.Y. (Jean H. Kang of counsel), for appellant.

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

In an action to recover no-fault benefits under an insurance contract, the defendant appeals from (1) an order of the Supreme Court, Nassau County (Robbins, J.), entered June 30, 2006, which granted the motion of the plaintiff New York Hospital Medical Center of Queens for summary judgment on the second and third causes of action, and (2) a judgment of the same court entered July 11, 2006, which is in favor of the plaintiff New York Hospital Medical Center of Queens and against it in the principal sum of $6,223.62.

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

Ordered that the judgment is reversed, on the law, the order entered June 30, 2006, is modified by deleting the provision thereof granting that branch of the motion of the plaintiff New York Hospital Medical Center of Queens which was for summary judgment on the second cause of action, and substituting therefor a provision denying that branch of the motion, and the matter is remitted to the Supreme Court, Nassau County, for entry of an appropriate amended judgment; and it is further,

Ordered that one bill of costs is awarded to the appellant. [*2]

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]). 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 New York Hospital Medical Center of Queens (hereinafter the plaintiff) established, prima facie, its entitlement to judgment as a matter of law with respect to the second cause of action by demonstrating that the necessary billing documents were mailed to and received by the defendant and that payment of the no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743 [2004]). However, in opposition to the motion, the defendant submitted admissible evidence which raised triable issues of fact as to the date on which the plaintiff mailed the no-fault claims to the defendant and whether the verification requests, which would serve to extend the defendant’s time within which to pay or deny the claim, were pending. Contrary to the Supreme Court’s determination, the defendant’s request for additional verification tolled the defendant’s time within which to pay or deny the claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1], [2]) until it received all of the relevant information requested (see Nyack Hosp. v General Motors Acceptance Corp., 27 AD3d 96, 100 [2005], mod 8 NY3d 294 [2007]). Moreover, the affidavit and documentary evidence submitted by the defendant were in admissible form since the affiant stated her basis for knowledge of the facts and laid a proper foundation for introduction of the documents (see Montefiore Med. Ctr. v Government Empls. Ins. Co., 34 AD3d 771, 772 [2006]). Thus, the Supreme Court should have denied summary judgment as to the second cause of action.

The evidence submitted by the plaintiff in support of that branch of its motion which was for summary judgment on the third cause of action satisfied its burden of establishing, prima facie, its entitlement to judgment as a matter of law (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743 [2004]). While the defendant initially denied that the plaintiff provided it with the requested verification material, it failed to rebut the plaintiff’s showing that the verification material was actually mailed to the defendant. A presumption of receipt was created by the certified mail receipt and the signed return receipt card, each bearing a notation to the relevant medical records, such that the defendant’s denial of receipt of the verification material was insufficient to raise a triable issue of fact (see Westchester Med. Ctr. v Liberty Mut. Ins. Co., 40 AD3d 981, 982 [2007]; Matter of Fodor v MBNA Am. Bank, N.A., 34 AD3d 473 [2006]).

Motion by the respondent on appeals from an order of the Supreme Court, Nassau County, entered June 30, 2006, and a judgment of the same court entered July 11, 2006, to strike pages 18 through 20 of the appellant’s brief on the ground that it improperly raises arguments for the first time on appeal. By decision and order on motion of this Court dated May 31, 2007, the motion was held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.

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

Ordered that the motion is denied. Schmidt, J.P., Santucci, Florio and Dillon, JJ., concur.

—[*1] William A. Hecht, P.C., White Plains, N.Y. (Patricia Hecht of counsel), for appellant.

Lawrence R. Miles, Long Island City, N.Y., for respondent.

In a proceeding pursuant to CPLR article 75 to confirm an arbitration award, the petitioner appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated December 8, 2005, which denied the petition, granted the respondent’s cross petition to vacate the award, and directed the parties to resubmit, to the Workers’ Compensation Board, the issue of whether the petitioner’s assignor Maher Kiswani was injured in the course of his employment, and to provide notice to all involved parties of any hearing conducted by the Workers’ Compensation Board.

Ordered that the order is affirmed, with costs.

Maher Kiswani, a livery car driver, was injured in an automobile accident when the livery car he was driving struck a tree. Kiswani received medical treatment from Lutheran Medical Center (hereinafter Lutheran), and assigned his insurance benefits to it. Lutheran then sought payment of its medical fees from Hereford Insurance Company (hereinafter Hereford), the no-fault insurance carrier for the livery cab. When Hereford refused to pay, Lutheran demanded arbitration.

After appearing before a no-fault arbitrator, Hereford recommended submitting the question of whether Kiswani was injured in the course of his employment to the Workers’ Compensation Board (hereinafter the Board), and Lutheran voluntarily withdrew its claim before the arbitrator. After a hearing, the Board’s administrative law judge found that Kiswani was not injured [*2]in the course of his employment. Hereford, however, did not receive notice of the workers’ compensation hearing and did not participate in it.

Relying in part on the determination of the administrative law judge, Lutheran again sought to recover no-fault benefits from Hereford at a no-fault arbitration hearing. At that hearing, Hereford argued that it was not given notice of the workers’ compensation hearing and sought to introduce evidence that Kiswani was injured during the course of his employment. The arbitrator precluded Hereford from introducing the evidence because the issue had already been decided by the Board. The arbitrator awarded Lutheran the no-fault benefits, and the determination was confirmed by a master arbitrator. The Supreme Court vacated the arbitration award, holding that Hereford should have been given notice of the workers’ compensation hearing, and directed the parties to resubmit the employment issue to the Board, with notice to all involved parties of any hearing held by the Board. We affirm.

The Supreme Court properly vacated the arbitration award because Hereford should have been notified of the workers’ compensation hearing. Where a party, such as Hereford in this case, is not afforded an opportunity to participate in a hearing before the Board, it is not bound by the Board’s determination (see Liss v Trans Auto Sys., 68 NY2d 15 [1986]; Mohn v Smith, 271 AD2d 662 [2000]; Matter of Wofsy v Dial Car, 211 AD2d 52 [1995]).

The petitioner’s remaining contentions are without merit. Spolzino, J.P., Santucci, Florio and Angiolillo, JJ., concur.