—[*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.

—[*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 insurance benefits under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCarty, J.), dated November 13, 2006, which denied its motion for summary judgment on the complaint, and granted the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

This case has its genesis in a one-car accident which occurred on February 3, 2006 and which resulted in serious injuries to the driver. At that time, the vehicle was insured under a policy of insurance issued by the defendant, Progressive Casualty Insurance Company (hereinafter Progressive). According to the police accident report, the driver of the car was cited for unsafe speed and driving while intoxicated.

Following the accident, the driver was transported to Westchester Medical Center (hereinafter the Hospital), where she remained until March 3, 2006. On March 14, 2006 the Hospital sent a hospital facility form (form N-F5) and a form UB-92 to Progressive, by certified mail, return receipt requested, seeking no-fault benefits in payment of the hospital bill. As per the return receipt, Progressive received these forms on March 16, 2006. [*2]

In support of its motion for summary judgment on the complaint, the Hospital submitted evidentiary proof that Progressive did not pay or deny the claim for no-fault medical payments within 30 days of receipt of the claim, as required by 11 NYCRR 65-3.8 (c). However, the evidence submitted by Progressive in opposition to the motion, and in support of its own cross motion for summary judgment dismissing the complaint, established that Progressive timely sought additional verification regarding the issue of the driver’s alleged intoxication at the time of the accident, and that such information was never received (see 11 NYCRR 65-3.5 [a], [b], [c]; 65-3.8 [g]; cf., Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]). Under such circumstances, where there is no triable issue of fact as to whether the Hospital provided Progressive with the required information, the Hospital’s claim for payment was premature. Accordingly, the Supreme Court properly granted Progressive’s motion for summary judgment dismissing the complaint (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338 [2002]) Spolzino, J.P., Santucci, Florio and Angiolillo, JJ., concur.

—[*1] Cascone & Kluepfel, LLP, Garden City, N.Y. (Rosa Maria Patrone 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 (Lally, J.), entered October 3, 2006, which granted the plaintiff’s motion for summary judgment on the complaint and denied its cross motion for summary judgment dismissing the complaint, and (2) a judgment of the same court entered November 2, 2006, which, upon the order, is in favor of the plaintiff and against it in the principal sum of $27,532.36.

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

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

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

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 [*2]considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

In an action to recover no-fault benefits, a plaintiff makes 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 Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]). 11 NYCRR 65-3.8 (a) provides that no-fault benefits are overdue if not paid within 30 days after the insurer receives proof of claims, which shall include verification of all of the relevant information requested pursuant to 11 NYCRR 65-3.5.

The plaintiff hospital made a prima facie showing on its summary judgment motion that it had mailed the prescribed statutory billing form and did not receive payment in 30 days. In opposition, the defendant insurer failed to raise a triable issue of fact. Specifically, the defendant failed to come forward with proof in admissible form to demonstrate ” ‘the fact’ or the evidentiary ‘found[ation for its] belief’ that the patient’s treated condition was unrelated to his or her automobile accident” (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 19-20 [1999], quoting Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 198 [1997]). The affidavit of its medical expert was conclusory, speculative, and unsupported by the evidence. Accordingly, the Supreme Court properly granted the plaintiff’s motion for summary judgment on the complaint.

The defendant’s remaining contention is without merit. Spolzino, J.P., Skelos, Lifson and Balkin, JJ., concur.

—[*1] McDonnell & Adels, P.C., Garden City, N.Y. (Zara G. Friedman 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 so much of an order of the Supreme Court, Nassau County (Feinman, J.), dated January 27, 2006, as granted the motion of the plaintiff Mount Sinai Hospital, as assignee of Sidney Weingarten, denominated as one for leave to renew and reargue, but which was, in actuality, one for leave to reargue, and, upon reargument, vacated so much of a prior order of the same court dated July 8, 2005, as denied that plaintiff’s motion for summary judgment on the first cause of action and granted that plaintiff’s motion.

Ordered that the order dated January 27, 2006 is reversed insofar as appealed from, on the law, with costs, the motion, denominated as one for leave to renew and reargue, but which was, in actuality, one for leave to reargue, is denied, so much of the order dated July 8, 2005, as denied the motion of the plaintiff Mount Sinai Hospital, as assignee of Sidney Weingarten, for summary judgment on the first cause of action is reinstated and, upon searching the record (see CPLR 3212 [b]), that branch of the defendant’s cross motion which was for summary judgment dismissing the first cause of action is granted. [*2]

Pursuant to Insurance Law § 5106 (a) and 11 NYCRR 65-3.5, an insurer is required to either pay or deny a claim for no-fault automobile insurance benefits within 30 days from the date an applicant supplies proof of claim (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Failure to pay benefits within the 30-day requirement renders the benefits overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]). The 30-day period may be extended if within 10 days from receipt of a completed application, an insurer demands additional verification of a claim (see 11 NYCRR former 65.15 [d] [1]; [e]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493 [2006]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568,569 [2004]). If the requested verification has not been supplied to the insurer within 30 days from the insurer’s original request, the insurer shall issue a follow-up request within 10 days of the insured’s failure to respond (see 11 NYCRR former 65.15 [e] [2]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584 [2002]). “A claim need not be paid or denied until all demanded verification is provided” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., supra at 570, see Insurance Law § 5106 [a]; 11 NYCRR 65-3.5 [c], 65-3.8 [a] [1]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584 [2002]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 554 [1999]). “When a hospital fails to respond to a verification request, the 30-day period in which to pay or deny the claim does not begin to run, and any claim for payment by the hospital is premature” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., supra at 570).

Here, it is undisputed that the defendant made timely requests for additional information. The plaintiff Mount Sinai Hospital, as assignee of Sidney Weingarten (hereinafter the plaintiff), claims that it sent the requested material on December 21, 2004, by certified mail, and that the material was received by the defendant the next day. Assuming that sufficient evidence exists that the requested material was mailed (see Westchester Med. Ctr. v Liberty Mut. Ins. Co., 40 AD3d 981 [2007]), the 30-day period within which the defendant was required to either pay or deny the claim did not begin to run until December 22, 2004, the date the verification material was allegedly received (see New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., supra at 570), and did not expire until January 21, 2005. Since the plaintiff commenced its lawsuit by the filing of a summons with notice and verified complaint on November 19, 2004, approximately two months before the defendant was required to pay or deny the claim, the plaintiff’s action was brought prematurely and the defendant was entitled to summary judgment dismissing the plaintiff’s first cause of action (see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492, 493 [2005]). This Court may award this relief even though the defendant did not appeal from the original order denying that branch of its cross motion which was for summary judgment dismissing the first cause of action (see Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110 [1984]; Wolf v Atai, 139 AD2d 729,731 [1988]).

The defendant’s remaining argument, regarding a protective order, has been rendered academic. Crane, J.P., Goldstein, Dillon and Carni, JJ., concur.

—[*1] McDonnell & Adels, P.C., Garden City, N.Y. (Todd Hellman of counsel), for appellant.

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

In an action to recover no-fault medical payments under certain insurance contracts, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Peck, J.), dated December 28, 2004, as granted those branches of the plaintiff’s motion which were for summary judgment on the causes of action to recover no-fault medical payments allegedly due to Mary Immaculate Hospital as assignee of Yvette Coley and Khayyam Jackson.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff’s motion which were for summary judgment on the causes of action to recover no-fault medical payments allegedly due to Mary Immaculate Hospital as assignee of Yvette Coley and Khayyam Jackson are denied.

Viewing the evidence in the light most favorable to the nonmoving party (see Gonzalez v Metropolitan Life Ins. Co., 269 AD2d 495, 496 [2000]), we conclude that the plaintiff, Mary Immaculate Hospital (hereinafter the Hospital), failed, in support of its motion for summary judgment, to tender sufficient evidence in admissible form eliminating any triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; cf. Montefiore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 9 AD3d 354, 355-356 [2004]). The Hospital submitted affidavits in which a billing service representative averred that she had “billed” the defendant Allstate Insurance Company (hereinafter Allstate) “with a form N-F5 and UB92 for the sum of” $3606.93 and[*2]$2069.12, respectively. The evidence submitted in support of the motion, however, did not establish that the billing representative, or anyone else, mailed to Allstate those documents related to the claims for treatment rendered to Yvette Coley and Khayyam Jackson (cf. Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742, 742-743 [2004]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]). The certified mail receipts submitted in support of the motion did not establish that those mailings contained the documents relating to those patients.

Since the Hospital failed to establish prima facie that it was entitled to judgment as a matter of law, it is unnecessary to consider the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553, 555 [1999]).

Allstate’s remaining contention is without merit. Crane, J.P., Mastro, Rivera and Spolzino, JJ., concur.

—[*1] McDonnell & Adels, P.C., Garden City, N.Y. (Martha S. Henley 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 an order of the Supreme Court, Nassau County (Lally, J.), dated November 3, 2005, which denied its motion to vacate a clerk’s judgment of the same court entered May 11, 2005, upon its failure to appear or answer, and for leave to serve a late answer.

Ordered that the order is reversed, on the law and in the exercise of discretion, with costs, the motion is granted, the clerk’s judgment is vacated, and the answer annexed to the defendant’s motion papers is deemed served on the plaintiff.

A defendant seeking to vacate a default judgment pursuant to CPLR 5015 (a) (1) must demonstrate a “reasonable excuse for its delay in appearing and answering the complaint and a meritorious defense to the action” (Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; see New York & Presbyt. Hosp. v American Home Assur. Co., 28 AD3d 442 [2006]). The defendant demonstrated a reasonable excuse for its failure to timely appear and answer the complaint and a potentially meritorious defense. Accordingly, the Supreme Court improvidently exercised its discretion in denying the defendant’s motion to vacate the clerk’s judgment entered upon its failure to appear or answer, and for leave to serve a late answer.[*2]

Motion by the respondent on an appeal from an order of the Supreme Court, Nassau County, dated November 3, 2005, to strike portions of the appellant’s brief on the ground that those portions of the brief refer to matter dehors the record. By decision and order on motion of this Court dated June 30, 2006, the motion was held in abeyance and referred to the panel of 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 submission of the appeal, it is

Ordered that the motion is denied. Crane, J.P., Spolzino, Florio and Covello, JJ., concur.

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

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

In an action pursuant to Insurance Law 5106 (a) to recover no-fault benefits allegedly due under insurance contracts issued by the defendant, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Covello, J.), dated May 23, 2005, as denied that branch of their motion which was for summary judgment in favor of the plaintiff St. Vincent’s Hospital & Medical Center on the first cause of action.

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

The first cause of action allegedly arose out of an automobile accident on November 24, 2002, in which Rizero Delmonico (hereinafter Delmonico), the assignor of the plaintiff St. Vincent’s Hospital & Medical Center (hereinafter St. Vincent’s), was injured. From December 4, 2003, through December 16, 2003, St. Vincent’s allegedly provided medical services to Delmonico relating to the injuries sustained in the accident. At the time of the accident, the defendant, Nationwide Mutual Insurance Company, insured Delmonico under an automobile policy which contained a New York State no-fault endorsement.

On March 5, 2004, St. Vincent’s, as Delmonico’s assignee, sent by certified mail to the defendant, inter alia, a hospital facility form (NYS form N-F 5) for payment of its hospital bill in the principal sum of $42,486.21. The N-F 5 form was received by the defendant on March 8, [*2]2004. In the first cause of action, as is relevant here, St. Vincent’s sought to recover the sum of $42,486.21. The plaintiffs moved for summary judgment thereon arguing that the defendant failed to provide to St. Vincent’s a denial of claim form (NYS form N-F 10) within 30 days as required by Insurance Law 5106 (a) and 11 NYCRR former 65.15 (g). In opposition to St. Vincent’s prima facie demonstration of entitlement to judgment as a matter of law on the first cause of action, the defendant submitted, inter alia, a copy of the N-F 10 form mailed on March 22, 2004, which stated that the denial was based upon the results of an “Independent Medical Exam” (hereinafter IME) but which did not annex a copy of the IME report or otherwise explain the basis for the denial.

The Supreme Court correctly denied that branch of the motion which was for summary judgment in favor of St. Vincent’s on the first cause of action. The Supreme Court correctly concluded that the defendant issued a timely denial of claim on the prescribed N-F 10 form (see Insurance Law § 5106 [a]; 11 NYCRR former 65.15 [g] [3]; 11 NYCRR 65-3.4 [c] [11]; cf. New York & Presbyt. Hosp. v AIU Ins. Co., 20 AD3d 515 [2005]; Bonetti v Integon Natl. Ins. Co., 269 AD2d 413 [2000]), and, accordingly, raised a triable issue of fact on the first cause of action (see Dandrea v Hertz, 23 AD3d 332 [2005]).

We decline to consider the issue of the adequacy of the defendant’s denial of claim, and specifically, St. Vincent’s argument that the N-F 10 form failed to adequately set forth the reason that the no-fault claim was denied. St. Vincent’s raised this issue for the first time in its reply papers, and there is no evidence that the defendant had an opportunity to submit a surreply (see Guarneri v St. John, 18 AD3d 813 [2005]; Matter of Hayden v County of Nassau, 16 AD3d 415 [2005]). Crane, J.P., Rivera, Fisher and Dillon, JJ., concur.

—[*1] The Barnes Firm, P.C., Rochester (Richard P. Amico of counsel), for respondent-appellant.

Sugarman Law Firm, LLP, Syracuse (Timothy J. Perry of counsel), for petitioner-respondent.

Appeal from an order of the Supreme Court, Cayuga County (Peter E. Corning, A.J.), entered March 8, 2006 in a proceeding pursuant to CPLR article 75. The order granted the petition and permanently stayed arbitration.

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

Memorandum: On July 29, 2003, respondent was seriously injured when the vehicle in which he was a passenger struck another vehicle. Respondent filed claims with the insurance companies for both vehicles. The insurance company for the vehicle in which respondent was a passenger denied his claim on the ground that the policy had expired at the time of the accident and thus the vehicle was not insured. The insurance company for the second vehicle denied respondent’s claim on the ground that there was no liability for the accident on the part of its insured. The Motor Vehicle Accident Indemnification Corporation denied respondent’s subsequent application for benefits on the ground that respondent was covered by an insurance policy issued by petitioner, Progressive Northeastern Insurance Company (Progressive), to respondent’s parents.

On March 16, 2004, respondent filed both a claim for no-fault benefits and an uninsured motorist (UM) claim with Progressive. Progressive paid benefits on the no-fault claim but disclaimed coverage on the UM claim based on respondent’s failure to give Progressive notice and proof of the claim as soon as practicable. When respondent informed Progressive of his intent to arbitrate his UM claim, Progressive commenced this CPLR article 75 proceeding seeking to stay arbitration. We conclude that Supreme Court properly granted the petition.

Contrary to the contention of respondent, the fact that Progressive paid no-fault benefits does not establish that Progressive waived the right to disclaim coverage on the UM claim. “Waiver is the intentional relinquishment of a known right” (Enright v Nationwide Ins. [appeal No. 2], 295 AD2d 980, 981 [2002]; see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 968 [1988]). [*2]Here, there is no evidence in the record establishing Progressive’s intentional relinquishment of the notice requirements (see generally Albert J. Schiff Assoc. v Flack, 51 NY2d 692, 698 [1980]).

Contrary to respondent’s further contention, Progressive was not required to show prejudice before disclaiming coverage on the UM claim. Traditionally, the rule in New York has been that “an insured’s failure to provide timely notice of an accident [or claim] relieves the carrier of its obligation to perform regardless of whether it can demonstrate prejudice” (Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468, 474-475 [2005]). Although the Court of Appeals has declined to apply the traditional rule in cases where the insurer has received late notice of a legal action but otherwise received timely notice of the accident or claim (see e.g. Rekemeyer, 4 NY3d at 475-476; Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491, 497-498 [2002]), here there was no timely notice of the accident or claim (see Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 339-340 [2005]; Matter of Assurance Co. of Am. v Delgrosso, 38 AD3d 649, 650 [2007]; Gershow Recycling Corp. v Transcontinental Ins. Co., 22 AD3d 460, 461 [2005]; Brownstone Partners/AF&F, LLC v A. Aleem Constr., Inc., 18 AD3d 204 [2005]). Thus, Progressive was entitled to disclaim coverage on the UM claim based on respondent’s seven-month delay in notifying Progressive of the accident or claim (see e.g. Gershow Recycling Corp., 22 AD3d at 461).

In light of our determination, we see no need to reach Progressive’s remaining contention. Present—Hurlbutt, J.P., Gorski, Smith, Lunn and Pine, JJ.

[*1]

Fourth Department, June 8, 2007

APPEARANCES OF COUNSEL

Sugarman Law Firm, LLP, Syracuse (Timothy J. Perry of counsel), for appellant.

Knoer, Crawford & Bender, LLP, Buffalo (Paul A. Bender of counsel), for respondents.

{**43 AD3d at 183} OPINION OF THE COURT

Peradotto, J.

Sheila M. Meegan (plaintiff) was injured in a motor vehicle accident when the vehicle that she was driving was rear-ended by another vehicle. She thereafter settled with the driver of the other vehicle for $25,000, the maximum amount of coverage under his insurance policy. Plaintiffs then commenced this action seeking supplementary uninsured/underinsured motorist (SUM) coverage under the policy issued by defendant to plaintiff Michael T. Meegan, plaintiff’s husband. The case proceeded to trial, and Supreme Court granted plaintiffs’ cross motion for a directed verdict on, inter alia, the issue whether plaintiff sustained a serious injury. The jury thereafter returned a verdict in plaintiffs’ favor, and defendant moved for, inter alia, an order reducing the verdict “to conform to the coverage for this claim”{**43 AD3d at 184} or an order setting aside the verdict and granting a new trial on all issues. The court denied defendant’s posttrial motion, and judgment was entered for plaintiffs in the amount of $479,091.85.

For the reasons that follow, we agree with defendant that a new trial should be granted on the issue whether plaintiff sustained a serious injury within the meaning of Insurance Law § 5102 (d) because the court erred in granting that part of plaintiffs’ cross motion for a directed verdict on that issue. That issue involved questions of fact for the jury, and the court therefore erred in concluding that plaintiff’s shoulder injury met the serious injury threshold as a matter of law. [*2]

We address first the judgment in appeal No. 2. Plaintiffs contend that they were not required to establish that plaintiff sustained a serious injury in the context of this case. That contention is inconsistent with their position at trial and is raised for the first time on appeal. Nevertheless, we address plaintiffs’ contention in view of our conclusion that a new trial on the issue of serious injury should be granted. Plaintiffs’ contention involves an issue of first impression in this Department and, although the Second Department addressed the issue in Raffellini v State Farm Mut. Auto. Ins. Co. (36 AD3d 92 [2006]), we disagree with its resolution of the issue.

The SUM endorsement to defendant’s policy provides in relevant part that defendant agrees to “pay all sums that the insured . . . 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 . . . subject to the Exclusions, Conditions, Limits and other provisions of [the] SUM endorsement.” Pursuant to an exclusion in the SUM endorsement, SUM coverage does not apply “for non-economic loss[ ] resulting from bodily injury . . . unless the insured has sustained serious injury as defined in section 5102 (d) of the New York Insurance Law.” Thus, under the terms of the policy, plaintiffs were required to establish that plaintiff sustained a serious injury.

In Raffellini, the Second Department held that the provision in the insurance contract imposing a serious injury threshold requirement in the underinsurance context should not be given effect (see id. at 105). Pursuant to the reasoning of the Second Department,

“the Legislature made a point of imposing the serious{**43 AD3d at 185} injury threshold requirement in [Insurance Law § ] 3420 (f) (1), which governs mandatory, uninsured motorists coverage, . . . [but] omitted that threshold from the ensuing section, section 3420 (f) (2), which governs the optional coverage an insured may, for an additional premium, purchase from his or her insurer” (id. at 103).

Thus, reasoned the Second Department, the omission of the serious injury threshold requirement in section 3420 (f) (2) renders “legally irrelevant” a defense of lack of serious injury (id. at 103), and the regulations imposing such a requirement “would appear unauthorized” (id. at 104). The Court in Raffellini went on to note that Insurance Law § 3420 (a) provides for certain mandatory policy provisions that are to be “equally or more favorable to the insured” and that a provision in a contract imposing a serious injury threshold requirement is less favorable to an insured than section 3420 (f) (2) and thus should not be enforced (see id. at 105).

We disagree with the decision of the Second Department in Raffellini and conclude that plaintiffs were required to establish that plaintiff sustained a serious injury in order to recover under the policy. The language of the SUM endorsement in this case comes directly from the insurance regulations containing the requirements for SUM endorsements, which include the exclusion that SUM coverage does not apply to noneconomic damages unless the insured has sustained a “serious injury” as defined in Insurance Law § 5102 (d) (see 11 NYCRR 60-2.3 [f]).

It is well established that “[r]esponsibility for administering the Insurance Law rests with the Superintendent of Insurance . . . , who has ‘broad power to interpret, clarify, and implement the legislative policy’ ” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 863-864 [2003]; see Insurance Law § 301). Pursuant to Insurance Law § 301, the Superintendent of Insurance has the power to promulgate regulations, and those regulations are valid as long as they are not inconsistent with a specific statutory provision (see Medical Socy. of State of N.Y., 100 NY2d at 864; see also State Farm Mut. Auto Ins. Cos. v Brooks, 78 AD2d 456, 458 [1981], appeal dismissed 54 NY2d 753 [1981]).

In our view, the regulations requiring a person to establish that he or she sustained a serious injury in order to be entitled to SUM coverage are not inconsistent with section 3420 (f) (2) or any other provision of the Insurance Law. In the construction{**43 AD3d at 186} of a statute, the primary consideration for the court is to ascertain and give effect to the intent of the Legislature (see McKinney’s Cons Laws of NY, Book 1, Statutes § 92 [a]; Matter of Allstate Ins. Co. v Libow, 106 AD2d 110, 114 [1984], affd for reasons stated 65 NY2d 807 [1985]). Statutes are to “be given a reasonable construction, it being presumed that a reasonable result was intended by the Legislature” (Statutes § 143).

Insurance Law § 3420 (f) (2) does not explicitly dispense with the serious injury threshold requirement and, because “the statute is silent [on the issue], the regulations [implementing the statute and imposing that requirement] in no way conflict with the statute” (Medical Socy. of State of N.Y., 100 NY2d at 871). We further conclude that the regulations do not impose a requirement that is less favorable to the insured than section 3420 (f) (2). The regulations simply impose the same legal requirement that an injured plaintiff would have against an adequately insured driver and an uninsured driver (see § 3420 [f] [1]; § 5104). The regulations were not promulgated “on a blank slate without any legislative guidance, nor did [they] effectuate a profound change in . . . policy” (Medical Socy. of State of N.Y., 100 NY2d at 865). The obvious purpose of section 3420 (f) (2) and its corresponding regulations is to permit drivers to protect themselves under the same terms as they protect others injured as a result of their negligence. It was not the intent of the Legislature to provide a person injured by an underinsured driver with greater rights or a lesser burden of proof than an injured person otherwise would have against an adequately insured driver, when both actions arise from the same incident. To so conclude would be unreasonable and contrary to the purpose and intent of the No-Fault Law. We further note that SUM coverage is optional, and that an insured elects to obtain such coverage upon the specified terms and conditions of the coverage.

In sum, we conclude that, because the conditional and exclusionary language of the policy is not explicitly prohibited by the statute, and because the regulations implementing such policy provisions are authorized and not inconsistent with the language or purpose of Insurance Law § 3420 (f) (2) or any other provision of the Insurance Law, the policy provision containing the serious injury threshold requirement exclusion is valid and enforceable.

We further conclude that defendant is entitled to a new trial on damages. Contrary to the contentions of plaintiffs, absent{**43 AD3d at 187} evidence that defendant acted in bad faith, their underinsurance claim is limited to the amount of coverage provided in the policy, which is $250,000, less an offset of $25,000 for the payment made on behalf of the other driver (see Mendoza v Allstate Ins. Co., 13 AD3d 594, 595 [2004]). We also add that plaintiff’s recovery of past and future medical expenses and lost wages may be limited by exclusions, conditions, limits, or other provisions of the policy. Defendant’s remaining contentions with respect to the judgment in appeal No. 2 are moot in light of our determination.

We conclude with respect to the order in appeal No. 1 that the court abused its discretion in granting plaintiffs’ motion in limine in part by precluding an expert for defendant from testifying with respect to an entry in the medical records of one of plaintiff’s physicians. In support of their motion, plaintiffs submitted an affidavit of that physician’s office manager in which she stated that plaintiff did not become a patient of the physician until approximately one month after the date of the entry. In her affidavit, however, the office manager did not establish that she had personal knowledge of the entry, nor did she establish that she was responsible for making such entries. Even if she had made such a showing, the certified medical records were admissible in evidence pursuant to CPLR 4518 (c) and constituted prima facie evidence of the facts contained therein (see generally LaDuke v State Farm Ins. Co., 158 AD2d 137 [1990]). Plaintiffs’ contention with respect to the accuracy of the entry in those medical records goes to the weight to be given to the medical records, not their admissibility (see generally National Fuel Gas Supply [*3]Corp. v Goodremote, 13 AD3d 1134, 1135 [2004]).

Accordingly, we conclude that the judgment in appeal No. 2 should be reversed, plaintiffs’ cross motion for a directed verdict denied in part, defendant’s posttrial motion granted in part, the verdict set aside and a new trial granted on the issues of serious injury and damages. We further conclude that the order in appeal No. 1 should be reversed insofar as appealed from and plaintiffs’ motion in limine denied in its entirety.

Centra, J. (dissenting).

I

For the reasons that follow, we respectfully dissent in appeal No. 1 and dissent in part in appeal No. 2 because, in our view,{**43 AD3d at 188} defendant is not entitled to a new trial on the issues of serious injury and damages. With respect to appeal No. 2, we agree with the majority that plaintiffs’ underinsurance claim is limited to $225,000, and we therefore would modify the judgment in appeal No. 2 accordingly.

II

Sheila M. Meegan (plaintiff) sustained injuries in a motor vehicle accident when the vehicle she was driving was rear-ended by a vehicle driven by Kevin T. Berry. Plaintiff settled with Berry’s insurance company for $25,000, the maximum amount of coverage under Berry’s policy. Plaintiffs thereafter commenced this action seeking supplementary uninsured/underinsured motorists (SUM) coverage from defendant, who issued a policy to plaintiff Michael T. Meegan, plaintiff’s husband. Supreme Court granted plaintiffs’ motion in limine in part and precluded certain testimony of defendant’s expert (appeal No. 1). The action proceeded to trial, and a jury awarded plaintiff $26,250 for past lost wages, approximately $21,500 for past medical expenses, $100,000 for past pain and suffering, $50,000 for future lost wages, $65,000 for future medical expenses, and $200,000 for future pain and suffering. The jury also awarded Michael Meegan $15,000 on his derivative claim. The court granted judgment on the verdict (appeal No. 2) and denied defendant’s posttrial motion for an order reducing the verdict, vacating the award for past lost wages and medical expenses, or setting aside the verdict and granting a new trial on all issues. Defendant now appeals.

III

As did the majority, we will first address the issue of serious injury. The majority concludes that the court erred in granting that part of plaintiffs’ cross motion for a directed verdict on the issue of serious injury and that defendant therefore is entitled to a new trial on that issue. The majority further rejects the contention of plaintiffs that they are not required to establish that plaintiff sustained a serious injury. We agree with the decision of the Second Department in Raffellini v State Farm Mut. Auto. Ins. Co. (36 AD3d 92 [2006]) and conclude that plaintiffs are not required to establish that plaintiff sustained a serious injury.

To begin, we note that there is no statutory requirement that a plaintiff who asserts a breach of contract claim for SUM{**43 AD3d at 189} benefits must establish that he or she sustained a serious injury. Insurance Law § 5104 (a) provides that, “in any action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic [*4]loss, except in the case of a serious injury, or for basic economic loss.” That statute is not applicable to the facts of this case because, although plaintiff is a “covered person,” defendant is not. Plaintiffs’ claim for SUM benefits is governed by Insurance Law § 3420 (f) (2) (A), which provides that a policy of insurance shall, at the option of the insured, provide SUM insurance for bodily injury. That section does not require a plaintiff asserting a breach of contract claim for SUM benefits to establish that he or she sustained a serious injury. Unlike section 3420 (f) (2) (A), however, Insurance Law § 3420 (f) (1) requires a plaintiff seeking uninsured motorist (UM) benefits to establish that he or she sustained a serious injury.

There is therefore no statutory provision to support defendant’s contention that plaintiffs must establish that plaintiff sustained a serious injury. Instead, defendant relies on the insurance policy, which provides that there is no SUM coverage “for non-economic loss[ ] resulting from bodily injury . . . unless the insured has sustained serious injury as defined in section 5102 (d) of the New York Insurance Law.” That provision is set forth in the insurance regulations containing the requirements for SUM endorsements (see 11 NYCRR 60-2.3 [f]).^[FN*] The majority concludes that those regulations are not inconsistent with section 3420 (f) (2) and should therefore be upheld. We disagree with that conclusion.

As the majority notes, the Superintendent of Insurance (Superintendent) “has ‘broad power to interpret, clarify, and implement the legislative policy’ ” (Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 863-864 [2003]). Where, however, ” ‘the question is one of pure statutory reading and analysis, dependent only on accurate apprehension of legislative intent, there is little basis to rely on any special competence or expertise of the administrative agency’ ” (Matter of Gruber [New York City Dept. of Personnel—Sweeney], 89 NY2d 225, 231 [1996]; see Matter of Belmonte v Snashall, 2 NY3d 560, 566 [2004]). In that situation, “the judiciary need not accord any deference to the{**43 AD3d at 190} agency’s determination, and is free to ascertain the proper interpretation from the statutory language and legislative intent” (Gruber, 89 NY2d at 231-232).

In our view, no deference should be accorded to the Superintendent’s interpretation of the statute, and the regulations are not rational (cf. Belmonte, 2 NY3d at 565-567; Medical Socy. of State of N.Y., 100 NY2d at 867, 871-872). Interpretation of a statute begins with an examination of its plain meaning (see Bluebird Partners v First Fid. Bank, 97 NY2d 456, 460-461 [2002]). In addition,

” ‘[a] statute or legislative act is to be construed as a whole, and . . . all parts of an act are to be read and construed together to determine the legislative intent . . . Not only are different parts of the same act interpreted together, but different acts which are in pari materia are to be construed each in the light of the other’ ” (Matter of Cook v Carmen S. Pariso, Inc., 287 AD2d 208, 215 [2001]; see McKinney’s Cons Laws of NY, Book 1, Statutes § 97).

As noted above, Insurance Law § 3420 (f) (2) (A), governing SUM benefits, does not require any showing of a serious injury, yet section 3420 (f) (1), governing UM benefits, and section 5104 (a), governing negligence actions, do require such a showing. If the Legislature had wished to include a serious injury threshold requirement for SUM benefits, it could easily have done so (see generally Bluebird Partners, 97 NY2d at 461). There was no reason for the Legislature to include such a requirement, however, because a plaintiff seeking to recover SUM benefits from his or her insurer must already have made a showing of serious injury in an action against the tortfeasor. Section 3420 (f) (2) (A) provides that, “[a]s a condition precedent to the [*5]obligation of the insurer to pay under the [SUM] insurance coverage, the limits of liability of all bodily injury liability bonds or insurance policies applicable at the time of the accident shall be exhausted by payment of judgments or settlements” (see Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487, 493 [1999]). Thus, plaintiffs are not entitled to recover SUM benefits against their insurer unless and until they have collected the limits of the policy from the tortfeasor, and plaintiffs must meet the serious injury threshold requirement in that action against the tortfeasor. It would make no sense to require a plaintiff to make a showing of a serious injury in a{**43 AD3d at 191} tort action against a tortfeasor, and then to require the plaintiff to make that same showing again in a breach of contract action for SUM benefits against his or her insurer. Nor is it of any import whether the action against the tortfeasor ended in a settlement or proceeded to trial, where either the court or the jury would make an explicit finding of serious injury. The serious injury requirement is applicable in any of those scenarios. If a plaintiff does not have a serious injury, there is no reason for the tortfeasor to pay the limits of his or her policy.

We agree with the statement of the Second Department in Raffellini that the regulations and the provision in the insurance policy impose a requirement that “is less favorable to the insured than [Insurance Law §] 3420 (f) (2) and should not be given effect” (36 AD3d at 105). In concluding otherwise, the majority states that “[i]t was not the intent of the Legislature to provide a person injured by an underinsured driver with greater rights or a lesser burden of proof than an injured person otherwise would have against an adequately insured driver, when both actions arise from the same incident.” In our view, the majority’s statement is flawed because a person injured by an underinsured driver already is required to meet the serious injury threshold in an action against the tortfeasor. Therefore, by omitting that threshold requirement for a SUM claim, the Legislature is not affording the person injured by an underinsured driver any greater rights or any lesser burden of proof. Regardless of whether a person is injured by an underinsured driver or an adequately insured driver, the person must meet the serious injury threshold in an action against the driver, and an action against the underinsured driver is a condition precedent to any claim for SUM benefits. In upholding the regulations, the majority actually is imposing a greater burden of proof on the person injured by an underinsured driver than a person injured by an adequately insured driver. A person injured by an underinsured driver would first have to establish that he or she sustained a serious injury in order to obtain a judgment or settlement from the tortfeasor and would have to make that showing again in the breach of contract action against his or her insurer for SUM benefits.

In sum, we conclude that the court did not err in directing a verdict on the issue of serious injury because plaintiffs were not required to make that showing in the first instance.{**43 AD3d at 192}

IV

The remaining issues raised by defendant do not require a new trial. Defendant contends that the award of damages for Michael Meegan’s derivative claim must be vacated because the SUM endorsement does not provide coverage for derivative losses. There is no need to reach defendant’s contention, however, because derivative damages awarded for loss of consortium must be added to the direct damages awarded in determining the limit of liability for bodily injury sustained by one person (see Champagne v State Farm Mut. Auto. Ins. Co., 185 AD2d 835, 837 [1992], lv denied 81 NY2d 704 [1993]). In other words, the SUM coverage under this policy was $250,000 per person and $500,000 per accident, and the award of damages for plaintiff and the derivative damages for Michael Meegan cannot exceed $250,000 because plaintiff and Michael are considered one person in this context. Because the award to plaintiff exceeded $250,000, there cannot be an additional amount awarded to Michael Meegan.

There is also no need for a new trial based on the court’s having granted plaintiffs’ [*6]motion in limine in part by precluding an expert from testifying with respect to an entry in the medical records of one of plaintiff’s physicians. Assuming, arguendo, that the court erred in granting that part of plaintiffs’ motion, we conclude that the error is harmless. The entry in the medical records stated that plaintiff “has TMJ problems,” and there was other evidence before the jury concerning plaintiff’s preexisting condition of TMJ dysfunction.

We agree with defendant and the majority that plaintiffs’ underinsurance claim is limited to $225,000, i.e., $250,000 less an offset of $25,000 for the payment made on behalf of the other driver. Plaintiffs’ reliance on Acquista v New York Life Ins. Co. (285 AD2d 73 [2001]) is misplaced. In that case, the plaintiff asserted causes of action for, inter alia, breach of contract and bad faith by defendant insurer (id. at 75). The First Department determined that the cause of action alleging bad faith could not stand as a “distinct tort cause of action [but that the] allegations may be employed to interpose a claim for consequential damages beyond the limits of the policy for the claimed breach of contract” (id. at 82). In this case, however, plaintiffs did not allege bad faith by defendant and thus cannot recover consequential damages beyond the limits of the policy.{**43 AD3d at 193}

V

Accordingly, we would affirm the order in appeal No. 1 and modify the judgment in appeal No. 2 by granting defendant’s posttrial motion in part and reducing the verdict to $225,000.

Lunn and Pine, JJ., concur with Peradotto, J.; Centra, J., and Gorski, J.P., dissent in part and vote to modify in accordance with a separate opinion by Centra, J.

It is hereby ordered that the judgment so appealed from be and the same hereby is reversed on the law without costs, the cross motion for a directed verdict is denied in part, the posttrial motion is granted in part, the verdict is set aside, and a new trial is granted on the issues of serious injury and damages.

Footnotes

Footnote *: We recognize that the regulations apply to claims for SUM benefits involving both uninsured and underinsured vehicles. Our analysis is limited, however, to situations involving only underinsured vehicles.