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

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

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

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

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

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

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

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

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

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

Thomas Torto, New York, for respondent.

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

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

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

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

—[*1] Moore & Associates (Carol R. Finocchio, New York, N.Y., of counsel), for appellant.

In an action, inter alia, to recover no-fault medical payments, the defendant appeals, by permission, from an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated October 3, 2005, which affirmed so much of an order of the Civil Court, Kings County (Spodek, J.), entered September 1, 2004, as denied that branch of its cross motion which was for summary judgment dismissing the complaint as time-barred.

Ordered that the order dated October 3, 2005 is affirmed, with costs.

The plaintiff is a chiropractor who provided treatment to three individuals injured in a 1997 automobile accident. Prior to receiving treatment, the patients assigned the plaintiff their right to recover first-party medical benefits from the defendant insurance company. In the fall of 1997 the defendant paid a portion of the plaintiff’s bills, but denied full payment on the ground that the amounts billed were in excess of the fee schedule and reasonable and customary charges. More than five years later, the plaintiff commenced this action seeking the balance due on the subject bills. The defendant subsequently cross-moved, inter alia, for summary judgment dismissing the complaint contending that the action was time-barred by the three-year statute of limitations which applies to obligations created by statute (see CPLR 214 [2]). The Civil Court, inter alia, denied that branch of the cross motion, finding that the action was governed by the six-year statute of limitations applicable to contractual obligations (see CPLR 213 [2]), and the Appellate Term affirmed that portion of the order. We agree that the six-year statute of limitations applies to this action, and thus the Civil Court properly denied that branch of the defendant’s cross motion which was for summary judgment dismissing the complaint as time-barred. [*2]

We begin our analysis by considering the language of the relevant statutory provisions. CPLR 213 (2) provides a six-year statute of limitations where the plaintiff’s action is one based “upon a contractual obligation or liability, express or implied . . . ” By contrast, CPLR 214 (2) provides a three-year statute of limitations where the action is “to recover upon a liability, penalty or forfeiture created or imposed by statute except as provided in sections 213 and 215″ (emphasis added). Thus, as a matter of strict statutory interpretation, where the plaintiff’s action is based upon both a “contractual obligation or liability ” and upon a “liability, penalty or forfeiture created or imposed by statute,” the longer, six-year statute of limitations, as provided in CPLR 213 (2), is applied to the exclusion of the three-year statute of limitations provided in CPLR 214 (2).

Here, the plaintiff’s action is premised on the terms of a contract for automobile liability insurance. Although the relevant terms of such contracts are mandated by various provisions of the Insurance Law, we find that the six-year statute of limitations provided in CPLR 213 (2) applies to the exclusion of the three-year statute of limitations provided in CPLR 214 (2). Our statutory interpretation is confirmed by case law. In Gurnee v Aetna Life & Cas. Co. (55 NY2d 184, 193 [1982], cert denied 459 US 837 [1982]), the Court of Appeals recognized, albeit in dicta, that the six-year statute of limitations, as provided in CPLR 213, applied to a cause of action based upon wrongfully withheld first-party benefits. This Court has followed that rule in the past on the theory that a no-fault claimant’s right (or that of his or her assignee) to recover first-party benefits derives primarily from the terms of the relevant contract of insurance (see Hanover Ins. Co. v Fleisher, 96 AD2d 881, 882 [1983]; Nahmias v Merchants Mut. Ins. Co., 91 AD2d 680 [1982]; see also Matter of New York Cent. Mut. Fire Ins. Co. v Czumaj, 9 AD3d 833, 835 [2004] [4th Dept, Green and Scudder, JJ., dissenting]; Benson v Boston Old Colony Ins. Co., 134 AD2d 214 [1987]; Micha v Merchants Mut. Ins. Co., 94 AD2d 835 [1983]). These cases demonstrate that the inclusion of terms in an insurance contract, which might be mandated by various statutes or regulations, does not necessarily alter the fundamentally contractual nature of the dispute between the insured (or his or her assignee), on the one hand, and his or her “no-fault” insurer, on the other hand.

We reject the defendant’s contention that the Court of Appeals’ decision in Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co. (89 NY2d 214 [1996]) (hereinafter MVAIC v Aetna) requires us to apply the three-year limitations period set forth in CPLR 214 (2). MVAIC v Aetna is distinguishable from the present case because it did not involve a claim asserted by an insured (or his or her assignee) directly against his or her no-fault insurer. In that case, Aetna denied coverage under an automobile liability policy, claiming that the policy had been cancelled prior to the subject accident. After paying no-fault benefits to the claimants, the Motor Vehicle Accident Indemnification Corporation (MVAIC) sought to recoup those payments from Aetna by demanding arbitration pursuant to Insurance Law § 5105 (a) and (b). In seeking recoupment, MVAIC asserted a right of action against Aetna that, in addition to being unknown at common law, could not properly be viewed as arising out of any contract. Indeed, Aetna and MVAIC had no contract between themselves. It was under these circumstances that the Court of Appeals held that MVAIC’s claim was governed by the three-year statute of limitations provided in CPLR 214 (2) (see 89 NY2d at 221).

We also reject the defendant’s claim that MVAIC v Aetna can be viewed as having overruled Gurnee v Aetna Life & Cas. Co. (supra), and the cases which have relied upon Gurnee in applying a six-year limitations period to claims asserted by an insured against a carrier for no-fault benefits. Notably, in MVAIC v Aetna, the Court of Appeals did not expressly overrule Gurnee although that case was brought to the Court’s attention by counsel. Furthermore, in MVAIC v Aetna the Court of Appeals did not implicitly or explicitly overrule Micha v Merchants Mut. Ins. [*3]Co. (supra), and Hanover Ins. Co. v Fleisher (supra).

The defendant’s reliance upon Aetna Life & Cas. Co. v Nelson (67 NY2d 169 [1986]) (hereinafter Aetna Life v Nelson), is also misplaced. In that case, the injured claimants had successfully recovered first-party benefits from their insurance carrier, Aetna Life, based on injuries suffered in a one-car accident. They later obtained a judgment against the State of New York in the Court of Claims, a judgment that was in part duplicative of the first-party benefits awarded to them by Aetna Life. Accordingly, Aetna Life sought to enforce a lien on that judgment in order to recoup its payment of first-party benefits, and also in order to obviate what would otherwise be a “double recovery” by the no-fault claimants. In arguing that its claim was not time-barred, Aetna Life relied upon the “residual” six-year statute of limitations set forth in CPLR 213 (1), and did not argue that its claim sounded in contract. In finding that the applicable statute of limitations was the three-year term provided in CPLR 214 (2), the Court of Appeals noted that the right to recoupment being pursued by Aetna Life was “made available to [it] pursuant to Insurance Law § 673 (2) [currently section 5104 (b)]” (67 NY2d at 175).

In contrast to MVAIC v Aetna and Aetna Life v Nelson, the instant case involves a dispute between the defendant, an insurer, and the plaintiff, an insured’s assignee, regarding the recovery of no-fault benefits under the terms of an insurance policy. Although the terms of the insurance policy may be mandated by various provisions of the Insurance Law, this does not alter the fact that the dispute is fundamentally contractual in nature and not a creature of statute. Accordingly, the six-year statute of limitations set forth in CPLR 213 (2) applies to this action, and the Appellate Term properly affirmed so much of the Civil Court’s order denying that branch of the defendant’s cross motion which was for summary judgment dismissing the complaint as time-barred (see Gurnee v Aetna Life & Cas. Co., supra). Rivera, J.P., Krausman, Goldstein and Lunn, 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 under contracts of insurance, the defendant appeals from a judgment of the Supreme Court, Nassau County, entered March 29, 2006, which, upon an order of the same court (Brennan, J.) dated March 13, 2006, granting the motion of the plaintiff Mount Sinai Hospital, as assignee of Salvatore Gigante, for summary judgment on the third cause of action, is in favor of that plaintiff and against it in the principal sum of $30,092.49. The defendant’s notice of appeal from the order is deemed to be a notice of appeal from the judgment.

Ordered that the judgment is affirmed, with costs.

In support of its motion for summary judgment on the third cause of action, the plaintiff Mount Sinai Hospital, as assignee of Salvatore Gigante (hereinafter Mount Sinai), demonstrated its prima facie entitlement to judgment as a matter of law by submitting, inter alia, the requisite billing forms, a certified mail receipt, a signed return receipt card which referenced the patient and forms, and an affidavit of its third-party biller (see 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 [2006]). This evidence demonstrated that the defendant received the no-fault billing and failed to respond within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.5). The defendant failed to raise a triable issue of fact in opposition to the motion. Accordingly, the Supreme Court properly [*2]granted the motion of Mount Sinai for summary judgment on the third cause of action.

The defendant’s remaining contention is improperly raised for the first time on appeal (see Rotundo v S & C Magnetic Resonance Imaging, 255 AD2d 573 [1998]) and, in any event, is without merit (see General Construction Law § 46; William Iselin & Co. v Fireman’s Fund Ins. Co., 117 AD2d 86, 90 [1986], mod 69 NY2d 908 [1987]). Mastro, J.P., Goldstein, Lifson and Carni, JJ., concur.

—[*1] Shapiro, Beilly, Rosenberg, Aronowitz, Levy & Fox, LLP, New York, N.Y. (Roy J. Karlin of counsel), for appellant.

Shestack & Young, LLP, New York, N.Y. (Jamie B. Levy of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from a judgment of the Supreme Court, Queens County (Rios, J.), entered July 20, 2006, which denied the petition and dismissed the proceeding.

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

The respondent’s failure to file a sworn statement with the petitioner after the alleged hit-and-run accident in accordance with the condition precedent of the supplemental uninsured motorist endorsement of his insurance policy, vitiated coverage (see Matter of Empire Ins. Co. v Dorsainvil, 5 AD3d 480, 481 [2004]; Matter of Legion Ins. Co. v Estevez, 281 AD2d 420 [2001]; Matter of Aetna Life & Cas. v Ocasio, 232 AD2d 409 [1996]; Matter of State Farm Ins. Co. v Velasquez, 211 AD2d 636, 637 [1995]). Contrary to the respondent’s contentions, the policy language which mirrors the prescribed endorsement of 11 NYCRR 60-2.3 (f) is not ambiguous. Moreover, the fact that the petitioner received some notice of the accident by way of an application for no-fault benefits did not negate the breach of the policy requirement (see Matter of Allstate Ins. Co. v Estate of Aziz, 17 AD3d 460, 461 [2005]; Matter of American Home Assur. Co. v Joseph, 213 AD2d 633 [1995]). Schmidt, J.P., Crane, Fisher and Dickerson, JJ., concur.

—[*1] Barry & Post, LLC, Plainview, N.Y. (Rhonda H. Barry of counsel), for appellant. The Barnes Firm, P.C., Buffalo, N.Y. (Michael J. Cooper of counsel), for respondent.

In a proceeding to permanently stay arbitration of a claim for no-fault benefits, the petitioner appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Brandveen, J.), entered February 21, 2006, as denied the petition.

Ordered that the order is affirmed, with costs.

The petitioner contends that arbitration of its insured’s no-fault claim should have been stayed on the ground that its insured was entitled to workers’ compensation benefits as his primary coverage. The insured’s claim for workers’ compensation benefits was denied on the ground that “a self employed cab driver who owns his own cab” is not required to carry workers’ compensation insurance on himself.

In this regard, the petitioner contends that the insured’s “base affiliation” with Kenmore Cab Dispatch Service, Inc. (hereinafter Kenmore), obligated the latter to secure workers’ compensation coverage for the insured. However, the petitioner failed to submit evidence that Kenmore was the insured’s employer at the time of the accident (see Matter of Olistin v Wellington, 3 AD3d 618 [2004]). Indeed, the petitioner stated in its petition that the insured violated his insurance contract “by not informing” the petitioner that “he left his base affiliation” with Kenmore. Moreover, the petitioner failed to include a copy of the insurance policy in the record, and failed to submit any evidence in admissible form that the insured actually violated his insurance contract. Indeed, the petitioner asserted in the petition that it was “not denying coverage on that basis.” [*2]

In view of the foregoing, the petitioner failed to set forth a basis for permanently staying arbitration of the insured’s no-fault insurance claim. Rivera, J.P., Krausman, Goldstein and Lunn, JJ., concur.

—[*1] Sonnenschein, Nath & Rosenthal, LLP, New York, N.Y. (Deborah Renner and Steven M. Levy of counsel), for appellant Allstate Insurance Company; O’Melveny & Myers, LLP, New York, N.Y. (Ralph De Santo of counsel), for appellant GEICO General Insurance Company; Rivkin Radler, LLP, Uniondale, N.Y. (Evan H. Krinick and Harris Zakarin of counsel), for appellant State Farm Mutual Automobile Insurance Company; Stern & Montana, LLP, New York, N.Y. (Robert A. Stern of counsel), for appellant American Transit Insurance Co.; Short & Billy, P.C., New York, N.Y. (Skip Short and Conrad O’Brien Gellman & Rohn, P.C., Philadelphia, Pa, [Robert N. Felton] of counsel), for appellant Progressive Casualty Insurance Company; and Cozen & O’Connor, New York, N.Y. (Jacob C. Cohn of counsel), for appellant One Beacon Insurance Company (one brief filed). Law Office of Kenneth M. Mollins, P.C., and Franklin, Gringer & Cohen, P.C., Melville, N.Y. (Steven E. Cohen of counsel), for respondent (one brief filed). Melito & Adolfsen, P.C., New York, N.Y. (S. Dwight Stephens and Willey Rein & Fielding, LLP, Washington, D.C. [Craig A. Berrington and Karalee C. Morell] of counsel), for American Insurance Association, New York Insurance Association, Inc., Property Casualty Insurers Association of America, and National Association of Mutual Insurance Companies, amici curiae.

In an action to recover assigned no-fault benefits for medical services rendered, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Phelan, J.), dated June 7, 2006, as denied their motion for summary judgment on the issue of whether they may raise lack of medical necessity as a basis for denying claims for reimbursement [*2]to radiologists seeking payment for magnetic resonance imaging tests provided to no-fault patients pursuant to prescriptions, and granted that branch of the plaintiff’s cross motion which was for summary judgment on that issue.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, the defendants’ motion for summary judgment on the issue of whether they may raise lack of medical necessity as a basis for denying claims for reimbursement to radiologists seeking payment for magnetic resonance imaging tests provided to no-fault patients pursuant to prescriptions is granted, and that branch of the plaintiff’s cross motion which was for summary judgment on that issue is denied.

The plaintiff, the owner and operator of radiology facilities that perform magnetic resonance imaging tests (hereinafter MRIs), commenced this action against the defendants to recover assigned no-fault benefits for MRIs performed on patients injured in motor vehicle accidents pursuant to prescriptions issued by the patients’ physicians and/or medical providers. The amended verified complaint alleges that the plaintiff performs MRIs on patients at the request of medical providers without making a diagnosis or performing a physical examination and that the defendants improperly deny many of these claims on the grounds of “lack of medical necessity.” Following the joinder of issue, the defendants moved for summary judgment on the issue of whether they may raise lack of medical necessity as a basis to deny claims for reimbursement to radiologists seeking payment for MRIs provided to no-fault patients pursuant to prescriptions, and the plaintiff cross-moved, inter alia, for summary judgment on that issue. The Supreme Court denied the defendants’ motion and granted that branch of the plaintiff’s cross motion which was for a determination that the defense of lack of medical necessity is not available against radiologists performing MRIs pursuant to prescriptions because these radiologists do not assess medical necessity. We reverse.

New York’s no-fault insurance law, formally known as the “Comprehensive Automobile Insurance Reparations Act” (Insurance Law art 51), was enacted with the objective of promoting prompt resolution of injury claims, limiting cost to consumers, and alleviating unnecessary burdens on the courts (see Pommells v Perez, 4 NY3d 566, 571 [2005], citing Governor’s Mem approving L 1973, ch 13, 1973 McKinney’s Session Laws of NY, at 2335). The no-fault law thus provides a compromise: prompt payment for “basic economic loss” (Insurance Law § 5102 [a]) to injured persons regardless of fault, in exchange for a limitation on litigation to cases involving serious injury (see Pommells v Perez, supra; Montgomery v Daniels, 38 NY2d 41, 50-51 [1975]). The no-fault law defines “basic economic loss,” for which accident victims are entitled to reimbursement up to $50,000, as “[a]ll necessary expenses incurred for: (i) medical, hospital . . . surgical, nursing, dental, ambulance, x-ray, prescription drug and prosthetic services” (Insurance Law § 5102 [a] [1] [emphasis added]). Like the statute, the regulations promulgated thereunder expressly state that reimbursable medical expenses consist of “necessary expenses” (11 NYCRR 65-1.1 [emphasis added]). An accident victim may assign his or her no-fault claim to a medical provider who has provided a medical service (see 11 NYCRR 65-3.11).

An assignee “stands in the shoes” of an assignor (Arena Constr. Co. v Sackaris & Sons, 282 AD2d 489 [2001]) and thus acquires no greater rights than its assignor (see Dilon Med. Supply Corp. v Travelers Ins. Co., 7 Misc 3d 927 [2005]). Since the defense of lack of medical necessity may indisputably be raised by the defendants against the injured party, it is available as against radiologists who accept assignments of no-fault benefits (see Hammelburger v Foursome Inn Corp., 54 NY2d 580, 586 [1981]; Losner v Cashline, L.P., 303 AD2d 647, 648 [2003]; West Tremont Med. [*3]Diagnostic, P.C. v GEICO, 13 Misc 3d 131[A], 2006 NY Slip Op 51871[U] [2006]; see also Precision Diagnostic Imaging, P.C. v Travelers Ins. Co., 8 Misc 3d 435 [2005]). Miller, J.P., Krausman, Fisher and Dillon, JJ., concur. [See 12 Misc 3d 1167(A), 2006 NY Slip Op 51090(U) (2006).]

—[*1]

In an action to recover no-fault medical payments under an insurance contract, the defendant, Progressive Casualty Insurance Company, appeals, by permission, as limited by its brief, from so much of an order of the Appellate Term of the Supreme Court for the Second and Eleventh Judicial Districts, dated December 22, 2004 [7 Misc 3d 18], as affirmed so much of an order of the Civil Court, Queens County (Markey, J.), entered March 19, 2003, as, in effect, denied its motion for summary judgment dismissing the complaint, and the plaintiff cross-appeals, by permission, as limited by its brief, from so much of the same order as reversed that portion of the same order of the Civil Court which, in effect, granted its cross motion for summary judgment, and substituted a provision denying its cross motion.

Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The defendant, Progressive Casualty Insurance Company (hereinafter Progressive), denied the claim of the plaintiff, Stephen Fogel Psychological, P.C. (hereinafter Fogel), as assignee of Kim Choy Chong (hereinafter Kim), for no-fault benefits on the ground that Kim had failed to appear for independent medical examinations (hereinafter IMEs) that Progressive demanded before [*2]Fogel submitted the statutory claim forms. Fogel brought this action seeking payment. Progressive moved for summary judgment on the ground that, by failing to appear for the IMEs, Kim had breached a condition precedent to payment on the policy. Fogel cross-moved for summary judgment on the expressly limited ground that, assuming Kim had failed to appear for the IMEs, Fogel was still entitled to payment on the policy for charges incurred before Kim’s failure to appear. The Civil Court, in effect, denied Progressive’s motion and, in effect, granted Fogel’s cross motion. The Appellate Term modified the Civil Court’s order to the extent of denying Fogel’s cross motion and otherwise affirmed the order. We affirm the order of the Appellate Term.

In support of its motion for summary judgment, Progressive was required to establish, prima facie, that it mailed the notices of the IMEs to Kim and that he failed to appear for the IMEs. Progressive failed to meet its burden by proof in admissible form, because it submitted no evidence from anyone with personal knowledge of the mailings or of the nonappearances (see New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547-548 [2006]; Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]). Given Progressive’s failure to meet its burden, denial of its motion was required without consideration of Fogel’s opposition papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Mariaca-Olmos v Mizrhy, 226 AD2d 437, 438 [1996]).

With respect to the cross appeal, the Appellate Term correctly denied Fogel’s cross motion for summary judgment. We agree with the Appellate Term that appearance at an IME is required whether the insurance company demands the IME before the claim form is submitted or after the claim form is submitted (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 7 Misc 3d 18 [2004]). The mandatory personal injury endorsement (11 NYCRR 65.12, now 11 NYCRR 65-1.1) provides that the “eligible injured person shall submit to medical examination by physicians selected by, or acceptable to, the Company, when, and as often as, the Company may reasonably require” (11 NYCRR 65-1.1).

We disagree, however, with the Appellate Term that there is a distinction between the contractual remedies depending on whether the failure to appear for IMEs occurs before submission of the claim form or after its submission. There is no basis for such a distinction, and we decline to impose one. The appearance of the insured for IMEs at any time is a condition precedent to the insurer’s liability on the policy (see 11 NYCRR 65-1.1). This conclusion accords with the language of the mandatory endorsement and the interpretation given it by the State Insurance Department, which promulgated the regulations (see 2005 Ops Ins Dept No. 05-02-21 [www.ins.state.ny.us/ogco2005/rg050221.htm; http://www.courts.state.ny.us/reporter/webdocs/no-fault_benefits_cutoff_date.htm]; 2003 Ops Ins Dept No. 03-02-12 [www.ins.state.ny.us/ogco2003/rg030212.htm; http://www.courts.state.ny.us/reporter/webdocs/failure_to_attend_no_fault_ime.htm]; 2002 Ops Ins Dept No. 02-04-19 [www.ins.state.ny.us/ogco2002/rg 204121.htm; http://www.courts.state.ny.us/reporter/webdocs/no_faultinsurer_medicalexaminations.htm]). The State Insurance Department’s interpretation is entitled to deference unless “irrational or unreasonable” (Matter of John Paterno, Inc. v Curiale, 88 NY2d 328, 333 [1996], quoting Matter of New York Pub. Interest Research Group v New York State Dept. of Ins., 66 NY2d 444, 448 [1985]; cf. Matter of Gaines v New York State Div. of Hous. & Community Renewal, 90 NY2d 545, 548-549 [1997]). This conclusion furthers, as well, the policies underlying no-fault insurance, including, inter alia, the expeditious processing of claims (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 281 [1997]; Dermatossian v New York City Tr. Auth., 67 NY2d 219, 224-225 [1986]) and preventing fraud (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854, 861-862 [2003]).

Consequently, an insurer may deny a claim retroactively to the date of loss for a claimant’s failure to attend IMEs “when, and as often as, the [insurer] may reasonably require” (11 [*3]NYCRR 65-1.1). Thus, Fogel’s cross motion for summary judgment was properly denied. Crane, J.P., Krausman, Spolzino and Skelos, JJ., concur.

—[*1]

Carpinello, J. Appeal from an order of the Supreme Court (Dawson, J.), entered November 18, 2005 in Clinton County, which, inter alia, partially granted defendant’s cross motion to dismiss the complaint.

Plaintiff was injured in an April 2002 automobile accident for which she received no-fault benefits from defendant, her automobile insurance carrier.^[FN*] At some point thereafter, however, defendant refused to cover certain treatments prompting plaintiff to commence this action. In addition to asserting a breach of contract claim against defendant, plaintiff asserted causes of action sounding in bad faith and tort (with a concomitant request for punitive damages). At issue is an order of Supreme Court which, among other things, dismissed the bad faith and tort causes of action. We now affirm.

Construing the complaint in the liberal light to which it is entitled on a motion to dismiss (see CPLR 3211 [a]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]), we nevertheless [*2]conclude that the causes of action sounding in tort and bad faith were not properly stated. The essence of plaintiff’s dispute with defendant is the latter’s breach of contract in failing to provide her with continued no-fault benefits following her accident. Plaintiff has failed to allege or demonstrate the creation of a relationship or duty between herself and defendant separate from this contractual obligation; therefore, no independent tort claim lies (see New York Univ. v Continental Ins. Co., 87 NY2d 308, 319-320 [1995]; Logan v Empire Blue Cross & Blue Shield, 275 AD2d 187, 192-193 [2000], lv dismissed 96 NY2d 823 [2001]). Moreover, no separate cause of action exists in tort for an insured’s alleged bad faith in failing to perform its contractual obligations (see New York Univ. v Continental Ins. Co., supra; Zawahir v Berkshire Life Ins. Co., 22 AD3d 841, 842 [2005]; Royal Indem. Co. v Salomon Smith Barney, 308 AD2d 349, 350 [2003]; Bettan v Geico Gen. Ins. Co., 296 AD2d 469, 470 [2002], lv dismissed 99 NY2d 552 [2002]). Thus, the bad faith claim was also properly dismissed.

To the extent that plaintiff also sought punitive damages in her complaint, such demands were also properly dismissed because there is no basis for determining that defendant’s conduct constitutes a tort independent of the contract (see New York Univ. v Continental Ins. Co., supra at 316-317; Logan v Empire Blue Cross & Blue Shield, supra at 194) and because her allegations do not demonstrate that defendant, in dealing with the general public, engaged in egregious or fraudulent conduct evincing “such wanton dishonesty as to imply a criminal indifference to civil obligations” (New York Univ. v Continental Ins. Co., supra at 316 [internal quotation marks and citations omitted]; accord Rocanova v Equitable Life Assur. Socy. of U.S., 83 NY2d 603, 613 [1994]; see Varveris v Hermitage Ins. Co., 24 AD3d 537, 538 [2005]; Sweazey v Merchants Mut. Ins. Co., 169 AD2d 43, 46 [1991], lv dismissed 78 NY2d 1072 [1991]; Hebert v State Farm Mut. Auto. Ins. Co., 124 AD2d 958, 959 [1986], lv dismissed 69 NY2d 1038 [1987]; Korona v State Wide Ins. Co., 122 AD2d 120, 121 [1986]).

To the extent preserved, plaintiff’s remaining contentions have been reviewed and rejected, including the claim that the driver of the vehicle should have been added as a party.

Cardona, P.J., Spain, Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed, with costs.

Footnotes

Footnote *: Plaintiff was not driving her vehicle at the time of the accident but rather was a front-seat passenger.

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In an action to recover no-fault medical payments under an insurance contract, the defendant appeals from an order of the Supreme Court, Nassau County (Bucaria, J.), dated September 15, 2005, which granted the plaintiff’s motion for summary judgment.

Ordered that the order is reversed, on the law, with costs, and the plaintiff’s motion for summary judgment is denied.

Contrary to the Supreme Court’s determination, the defendant’s request for additional verification, which followed the plaintiff’s submission of an N-F5 verification, did not have to be set forth in a prescribed form (see 11 NYCRR 65-3.5 [b]; Nyack Hosp. v Progressive Cas. Ins. Co., 296 AD2d 482, 483 [2002]). Therefore, the additional verification request 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 the defendant received all of the relevant information requested (see Nyack Hosp. v General Motors Acceptance Corp., 27 AD3d 96, 101 [2005]; Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 535 [2004]; St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338, 340 [2002]; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699, 700 [2001]). Since the defendant sent a partial payment and denial of benefits to the plaintiff after the requested material was provided and within the applicable time period, its response to the claim was not untimely. [*2]

Furthermore, the affidavit and documentary evidence submitted by the defendant in opposition to the plaintiff’s motion for summary judgment were in admissible form, since the affiant adequately stated her basis of knowledge for the facts asserted in her affidavit and laid a proper foundation for the introduction of the documents. Moreover, those submissions established that other medical providers were properly paid before the plaintiff (see 11 NYCRR 65-3.15; Nyack Hosp. v General Motors Acceptance Corp., supra at 103). However, a triable issue of fact exists as to whether the no-fault benefits under the subject policy were exhausted, since the affidavit of the defendant’s employee indicates that they were, but the payment register maintained by the defendant in the regular course of business reveals a balance of no-fault benefits in excess of the amount billed by the plaintiff. Accordingly, determination of the issue of whether the policy limits were in fact exhausted before full payment could be made to the plaintiff must await further proceedings.

The plaintiff’s remaining contentions are without merit. Adams, J.P., Ritter, Mastro and Lifson, JJ., concur.