—[*1]

In a proceeding pursuant to CPLR 7511 to vacate an award of a master arbitrator dated September 25, 2003, affirming an award of an arbitrator dated July 9, 2003, the appeal is from an order of the Supreme Court, Suffolk County (Cohalan, J.), dated November 12, 2004, which denied the petition and dismissed the proceeding.

Ordered that the order is affirmed, with costs.

Consistent with the public policy in favor of arbitration, the grounds specified in CPLR 7511 for vacating or modifying a no-fault arbitration award are few in number and narrowly applied (see Matter of Domotor v State Farm Mut. Ins. Co., 9 AD3d 367 [2004]). Here, the petitioner failed to demonstrate the existence of any of the statutory grounds for vacating the master arbitrator’s award. The arbitrator acted within his discretionary authority in refusing to entertain late submissions from each of the parties. Moreover, the determination of the master arbitrator affirming the original award had a rational basis (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 231-232 [1982]; Matter of Liberty Mut. Ins. Co. v Spine Americare Med., 294 AD2d 574, 576 [2002]). Crane, J.P., Santucci, Mastro and Dillon, JJ., concur.

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In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals from an order of the Supreme Court, Queens County (Satterfield, J.), dated February 24, 2004, which granted the defendant’s motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff sustained personal injuries in an automobile accident on August 22, 1994. Since that time, she has pursued two prior actions and an arbitration against her insurer, the defendant Country-Wide Insurance Company, to recover, inter alia, both uninsured and no-fault benefits under her policy. As a result thereof, the plaintiff recovered the full amounts of her policy limits, as well as statutory penalties for the defendant’s delay in paying her claims. As relevant to the instant appeal, in connection with the settlement of the plaintiff’s second action, which was commenced on or about January 24, 2000, the plaintiff executed, inter alia, a general release, dated January 25, 2002. In the instant action, the plaintiff seeks, inter alia, damages for breach of contract based on the defendant’s alleged bad faith in delaying the processing of her insurance claims.

The general release, dated January 25, 2002, which the plaintiff signed, bars the instant action (see Falconieri v A & A Discount Auto Rental, 262 AD2d 446, 447 [1999]; DeQuatro v Zhen Yu Li, 211 AD2d 609, 609-610 [1995]). [*2]

The plaintiff’s remaining contentions are either unpreserved for appellate review or without merit. H. Miller, J.P., Adams, Spolzino and Fisher, JJ., concur.

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In a proceeding to stay an uninsured motorist arbitration, the petitioner appeals from an order of the Supreme Court, Suffolk County (Mullen, J.), dated December 20, 2004, which denied the petition and dismissed the proceeding.

Ordered that the order is reversed, on the law and as a matter of discretion, with costs to the petitioner payable by Suffolk County Fleet Services, and the matter is remitted to the Supreme Court, Suffolk County, for a framed issue hearing in accordance herewith, and for a new determination of the petition thereafter.

As correctly conceded by the proposed additional respondent, Suffolk County Fleet Services (hereinafter Suffolk), a self-insured municipality is required to provide mandatory uninsured motorist benefits to employees who operate municipal motor vehicles (see Matter of State Farm Mut. Auto. Ins. Co. v Amato, 72 NY2d 288, 293-294 [1988]; Matter of Country-Wide Ins. Co. [Manning], 96 AD2d 471 [1983], affd 62 NY2d 748 [1984]; see also Insurance Law § 3420 [f] [1]). Contrary to Suffolk’s contention, however, a statutory arbitration proceeding to resolve a coverage dispute concerning an uninsured motorist claim is not a claim founded upon a tort, requiring the service of a notice of claim as a condition precedent to the commencement of an action within the meaning of General Municipal Law § 50-e (1) (a) (see County Law § 52; General Municipal Law § 50-i; cf. Matter of City of Syracuse v Utica Mut. Ins. Co., 61 NY2d 691 [1984]; Matter of Manhattan & Bronx Surface Tr. Operating Auth. v Evans, 95 AD2d 470 [1983]). Accordingly, the Supreme Court erred in dismissing the petition for failure to comply with General Municipal Law § 50-e. Although the appellant’s contention that a notice of claim was not a condition precedent is raised for the first time on appeal, we nevertheless reach it as a matter of discretion since it involves a question of law that appears on the face of the record and, if brought to the attention of the Supreme Court, could not have been avoided (see Weiner v MKVII-Westchester, LLC, 292 AD2d 597, 598 [2002]).

Because the court never reached the issue we remit the matter to the Supreme Court, Suffolk County, for a framed issue hearing to determine whether Suffolk received notice given by or on behalf of the injured person as soon as was reasonably practicable (cf. 11 NYCRR 65.11 [m] [2]; Insurance Law § 3420 [a] [3] and [4]; Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487 [1999]; Matter of State Farm Mut. Auto. Ins. Co. [Fuccio], 288 AD2d 46 [2001]).

The appellant’s remaining argument is academic in light of our determination. Florio, J.P., Crane, Fisher and Dillon, JJ., concur.

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In a proceeding pursuant to CPLR article 75 to vacate an arbitration award in favor of the City of Yonkers dated October 20, 2003, in the sum of $49,962.88, the appeal is from an order of the Supreme Court, Westchester County (Barone, J.), entered April 6, 2004, which granted the petition and vacated the award.

Ordered that the order is reversed, on the law, with costs, the petition is denied, the arbitration award is reinstated and confirmed, and the matter is remitted to the Supreme Court, Westchester County, for the entry of an appropriate judgment (see CPLR 7514 [a]).

On October 12, 2000, nonparty Richard Greco, an employee of the appellant City of Yonkers, sustained personal injuries, when, while crossing the street, he was struck by a motor vehicle owned by nonparty Keith Brunson. Brunson’s vehicle was insured by the petitioner, State Farm Mutual Automobile Insurance Company (hereinafter State Farm). Greco was working at the time of the accident.

Greco filed a bodily injury claim with State Farm, Brunson’s insurer, to recover damages for the personal injuries he sustained in the accident. In February 2002 Greco’s claim was settled for $100,000, the policy limit for the Brunson vehicle. Greco executed a standard form release (hereinafter the general release) dated February 1, 2002, in favor of Brunson, inter alia, [*2]releasing him from liability for any and all claims arising out of the accident.

Meanwhile, the City paid Greco workers’ compensation benefits which totaled $49,962.88. Greco did not seek the City’s permission to settle the personal injury action until after he had settled the matter and signed the general release. The City consented to the settlement in April 2002 in a letter (hereinafter the consent letter) in which it reserved its “offset and credit rights against all retroactive, future, current and modified workers’ compensation benefits payable to Richard Greco based upon the net settlement value received” by him.

The City sought mandatory arbitration pursuant to Insurance Law § 5105 against State Farm for recoupment of the workers’ compensation benefits it paid to Greco, commonly referred to as a “loss transfer.” State Farm asserted two affirmative defenses: that the policy limits were exhausted and that the general release executed by Greco extinguished the City’s subrogation rights. It did not assert that the City’s consent to the settlement constituted a waiver of its loss transfer rights. The arbitrator found in favor of the City. State Farm commenced this proceeding to vacate the arbitrator’s award. The Supreme Court granted the petition and vacated the award on the ground, inter alia, that the arbitrator’s award made no mention of the general release. We reverse.

An arbitration award in a mandatory arbitration proceeding will be upheld if it is supported by the evidence and is not arbitrary and capricious (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; Matter of Kemper Ins. Co. v Westport Ins. Co., 9 AD3d 431, 432 [2004]). On review, an award may be found to be rational if any basis for such a conclusion is apparent to the court based upon a reading of the record (see Caso v Coffey, 41 NY2d 153, 158 [1976], citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]; Dahan v Luchs, 92 AD2d 537, 538 [1983]).

Pursuant to Insurance Law § 5105, an insurer who pays out first-party benefits or workers’ compensation benefits in lieu thereof is afforded the mandatory intercompany arbitral process to recoup payment of those benefits through a loss transfer (see Doherty v Barco Auto Leasing Co., 144 AD2d 424, 426 [1988]). This mandatory arbitration provides the sole remedy for loss transfer (id.). An insurer does not lose its loss transfer rights as part of a personal injury settlement absent an “express waiver” of those rights (Allstate Ins. Co. v Manfredi Motor Tr. Co., 159 AD2d 969 [1990]; see Matter of Kemper Ins. Co. v Westport Ins. Co., supra; Doherty v Barco Auto Leasing Co., supra). In the case at bar, the City did not expressly waive its right to seek recovery of first-party benefits in intercompany arbitration, and the general release executed by its insured did not effect a waiver of its loss transfer rights. Thus, the arbitrator’s determination was supported by the evidence in the record (see Doherty v Barco Auto Leasing Co., supra; Allstate Ins. Co. v Manfredi Motor Tr. Co., supra), and was not arbitrary and capricious (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., supra).

The dissent does not dispute that the general release contains no explicit waiver of the City’s loss transfer rights. According to the dissent, however, the arbitrator failed to consider whether there was an explicit waiver of the right to loss transfer recovery, implying that the City’s consent letter constituted such a waiver. This issue was not before the arbitrator. The issue tendered to the arbitrator, as phrased by State Farm, was whether the general release extinguished the City’s claim, not whether the consent letter constituted an explicit waiver of the right to loss transfer. There is absolutely no evidence in the record to establish that the consent letter was submitted to the [*3]arbitrator for consideration on the issue of waiver. In fact, State Farm, the party who, according to the dissent, benefitted from this document, vigorously denied in the Supreme Court that it was submitted to the arbitrator. State Farm accused the City of submitting the consent letter to the Supreme Court for the first time. It criticized the City for failing to submit an affidavit by an individual with knowledge to establish that the consent letter had in fact been submitted in the arbitration. Thus, we are not, as the dissent states, deciding the issue de novo based upon an assumption of what evidence was before the arbitrator.

Even if the consent letter had been submitted to the arbitrator, it, like the general release, contains no explicit waiver of the City’s loss transfer rights. The mere fact that the City consented to the settlement is insufficient to constitute a waiver of its loss transfer rights. This point is made pellucidly clear by this Court’s holding in Doherty v Barco Auto Leasing Co. (supra). There, the plaintiff Andrew Doherty was involved in an accident while operating his employer’s truck. Liberty Mutual Insurance Company (hereinafter Liberty Mutual) insured Doherty’s employer against both workers’ compensation and automobile liability claims. State Farm Automobile Insurance Company (hereinafter State Farm Automobile) insured the vehicle owned by Barco Auto Leasing Co. Pursuant to its policies of insurance, Liberty Mutual paid Doherty’s workers’ compensation and no-fault benefits. Doherty commenced an action to recover damages for personal injuries. The action was settled with the participation of a supervisor at Liberty Mutual. Doherty stipulated, inter alia, “that there were no outstanding liens against his recovery and that all medical bills were paid to the no-fault and compensation carrier” (Doherty v Barco Auto Leasing Co., supra at 425).

Liberty Mutual thereafter placed into intercompany arbitration the loss transfer claims for no-fault and workers’ compensation benefits paid to Doherty. The arbitrator awarded Liberty Mutual 80% of its claims. State Farm Automobile commenced a CPLR article 75 proceeding to vacate the arbitration awards, and Liberty Mutual cross-moved for an order confirming the awards. The Supreme Court granted State Farm Automobile’s petition on the ground that the stipulation was binding upon Liberty Mutual, and that it had waived any “liens.” This Court reversed, holding that the stipulation of settlement did not expressly refer to Liberty Mutual’s right to loss transfer recovery, but only to outstanding liens (see Doherty v Barco Auto Leasing Co., supra at 425-426). “As a consequence, it [could] not be said that Liberty [Mutual] unequivocally waived its right to loss transfer recovery” (Doherty v Barco Auto Leasing Co., supra at 426, citing Matter of New Hampshire Ins. Co. [Utilities Mut. Ins. Co.], 134 AD2d 670 [1988]). The fact that Liberty Mutual participated in and explicitly consented to the settlement was of no relevance.

In the case at bar, there is evidentiary support in the record for the arbitrator’s award because the general release contains no express waiver of the City’s loss transfer rights (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., supra; Allstate Ins. Co. v Manfredi Motor Tr. Co., supra; Doherty v Barco Auto Leasing Co., supra). The outcome would not have been different even if, as the dissent suggests, the consent letter had been before the arbitrator since it too contains no express waiver of the City’s loss transfer rights.

Finally, the arbitrator complied with the applicable procedural requirements by including a brief statement of the basis for the finding (see 11 NYCRR 65.10 [d] [4] [vii]). The dissent simply disagrees with it.

Accordingly, the Supreme Court should have denied the petition and confirmed the arbitrator’s award in favor of the City (see CPLR 7511 [e]). Crane, J.P., Mastro and Spolzino, JJ., concur.

Goldstein, J., dissents and votes to affirm the order with the following memorandum in which Luciano, J., concurs: The instant case arises out of an accident involving a vehicle insured by the petitioner and Richard Greco, a pedestrian employed by the City of Yonkers who was crossing the street at the time of the accident. Richard Greco claimed and received workers’ compensation benefits. In February 2002 he settled his claim against the petitioner’s insured for $100,000, constituting the policy limits and signed a general release. On April 1, 2002, the City consented to the settlement of $100,000, reserving its “offset and credit rights” against “retroactive, future, current and modified Workers’ Compensation benefits payable to Richard Greco based upon the net settlement value.”

Thereafter, the City sought reimbursement from State Farm Mutual Automobile Insurance Company (hereinafter State Farm) pursuant to Insurance Law § 5105, which permits recoupment of payments of first-party benefits or payments made in lieu of first-party benefits if the requirements of Insurance Law § 5105 (a) are satisfied (see State Farm Mut. Auto. Ins. Co. v Aetna Cas. & Sur. Co., 132 AD2d 930 [1987], affd 71 NY2d 1013 [1988]). Recoupment pursuant to Insurance Law § 5105 is known as a “loss transfer recovery” (Doherty v Barco Auto Leasing Co., 144 AD2d 424, 426 [1988]).

In accordance with Insurance Law § 5105 (b) the controversy was submitted to mandatory arbitration. In the arbitration proceeding, State Farm asserted as affirmative defenses that its policy limits had been exhausted and a general release had been executed by Greco. A copy of the release was submitted with State Farm’s answer.

The arbitrator, after a hearing, awarded the City $49,962.88, stating that the “City of Yonkers proved liability against . . . State Farm for 100%” and “liability & claimed amount not at issue.” The arbitrator further stated that “bodily injury liability limit stretches to accommodate a basic PIP [personal injury protection] subro[gation] or worker’s comp loss transfer.”

State Farm commenced this proceeding to vacate the award. The petition was granted and the parties were directed to submit to a new arbitration hearing before a different arbitrator on the ground that “[t]he Arbitrator issued an incomprehensible two sentence decision which makes no mention of the legal issue of the general release entered into by Mr. Greco in favor of State Farm.”

Where, as here, the parties have submitted to compulsory arbitration, to be upheld, the award must have evidentiary support and cannot be arbitrary or capricious (see Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493 [1970]; Cigna Prop. & Cas. v Liberty Mut. Ins. Co., 12 AD3d 198 [2004]). Further, pursuant to 11 NYCRR 65.10 (d) (4) (vii) (d) the arbitration award must be rendered in a written decision which states a “brief statement of the basis for the finding, such as lack of proof, contributing negligence, apportionment of negligence or other controlling principles of law.”

Greco claimed and received workers’ compensation benefits. As part of the [*4]settlement, a workers’ compensation carrier may explicitly waive its right to a credit or offset pursuant to Workers’ Compensation Law § 29 (4) (see Miszko v Gress, 4 AD3d 575 [2004]) its right to recovery of liens and its right to a loss transfer recovery (see Matter of Kemper Ins. Co. v Westport Ins. Co., 9 AD3d 431, 432 [2004]; Allstate Ins. Co. v Manfredi Motor Tr. Co., 159 AD2d 969 [1990]; Doherty v Barco Auto Leasing Co., supra).

In the instant case, Greco’s employer explicitly consented to the settlement. The issue before the arbitrator was whether there was an explicit waiver of the right to loss transfer recovery. This issue was apparently not considered by the arbitrator. The majority would confirm the award, based upon its own determination that the evidence in the record would permit a finding that there was no explicit waiver.

Since the controversy including State Farm’s affirmative defense “must, as a matter of [law], be arbitrated” (Matter of State Ins. Fund [Country-Wide Ins. Co.], 276 AD2d 432 [2000]), it is not the function of this Court to decide the issues de novo. The arbitrator’s decision did not comply with 11 NYCRR 65.10 since it did not state the basis for the arbitrator’s finding in comprehensible terms. Accordingly, the award was properly vacated as arbitrary and capricious.

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In an action to recover no-fault medical payments, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Jonas, J.), dated August 20, 2004, which granted the defendant’s motion to vacate a judgment of the same court entered April 30, 2004, upon its default in opposing the plaintiffs’ motion for summary judgment.

Ordered that the order is reversed, on the law, with costs, the motion is denied, and the judgment is reinstated.

A defendant seeking to vacate a judgment entered upon default is required to demonstrate both a reasonable excuse for the default and the existence of a meritorious defense (see CPLR 5015 [a] [1]; Carnazza v Shoprite of Staten Is., 12 AD3d 393 [2004]; Henry v Kuveke, 9 AD3d 476 [2004]; Weekes v Karayianakis, 304 AD2d 561 [2003]). The defendant failed to do either. The defense counsel’s excuse of law office failure was conclusory and devoid of any detailed factual allegations, and thus did not constitute a reasonable excuse (see Fekete v Camp Skwere, 16 AD3d 544 [2005]; Juarbe v City of New York, 303 AD2d 462 [2003]; Morris v Metropolitan Transp. Auth., 191 AD2d 682 [1993]).

In addition, the defendant failed to present a meritorious defense to the action. [*2]Contrary to the defendant’s contention, written proof of claim on behalf of Michele Carias was timely submitted to it within 180 days after the date the services were rendered, as required pursuant to 11 NYCRR 65.12 (see New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004]; Montefiore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 9 AD3d 354 [2004]). The affidavit submitted by the defendant’s claims representative was insufficient to demonstrate that the injuries for which Carias was treated did not arise out of an insured incident (see New York Hosp. Med. Ctr. of Queens v Insurance Co. of State of Pa., 16 AD3d 391 [2005]; Santiago v Sansue Realty Corp., 243 AD2d 622, 623 [1997]; Peacock v Kalikow, 239 AD2d 188 [1997]). Moreover, the defendant’s submissions failed to demonstrate that it denied Mario Delgado’s claim for no-fault medical payments within the 30-day period prescribed by Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3) (see New York Hosp. Med. Ctr. of Queens v Insurance Co. of State of Pa., supra; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]). Accordingly, the defendant’s motion to vacate the judgment entered upon its default in opposing the motion for summary judgment should have been denied (see Presbyterian Hosp. in City of N.Y. v New York Cent. Mut. Ins. Co., 277 AD2d 299, 300 [2000]). Prudenti, P.J., Schmidt, Santucci, Luciano and Spolzino, JJ., concur.

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In an action to recover unpaid no-fault benefits, the plaintiff appeals from an order of the Supreme Court, Nassau County (Mahon, J.), dated November 17, 2003, which denied its motion for summary judgment on the first and second causes of action and granted the defendant’s cross motion for summary judgment dismissing those causes of action.

Ordered that the order is modified, on the law, by deleting the provisions thereof granting those branches of the cross motion which were for summary judgment dismissing the first and second causes of action and denying that branch of the motion which was for summary judgment on the first cause of action and substituting therefor provisions denying those branches of the cross motion, reinstating the first and second causes of action, and granting that branch of the motion which was for summary judgment on the first cause of action; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The Supreme Court erred in concluding that the plaintiff lacked standing to bring the action absent proof of a valid assignment from each claimant. The hospital facility forms submitted on behalf of the respective patients indicated that the signature of each patient/assignor was “on file.” There was no allegation or evidence that the defendant timely objected to the completeness of the forms or sought verification of the assignments as required by 11 NYCRR 65.15 (d). Accordingly, the defendant waived any defenses based thereon (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., 16 AD3d 564 [2005]; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640, 641 [2004]; New York Hosp. Med. Ctr. of Queens v AIU Ins. Co., 8 AD3d 456 [2004]). [*2]

With regard to the first cause of action, after the plaintiff made out a prima facie case for summary judgment, the defendant failed to raise a triable issue of fact as to whether the insured’s 2002 medical expenses “were for injuries for which expenses for treatment had not been submitted to it within one year of [his] accident” (Stanavich v General Acc. Ins. Co. of Am., 229 AD2d 872, 873 [1996]; see 11 NYCRR 65.15 [o] [1] [iii]). In any event, the defendant’s failure to assert this statutory-exclusion defense within 30 days of the receipt of the no-fault claim constituted a waiver (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286 [1997]; Westchester Med. Ctr. v American Tr. Ins. Co., 17 AD3d 581 [2005]). Accordingly the plaintiff was entitled to summary judgment on the first cause of action.

With regard to the second cause of action, the defendant asserted that no policy of insurance was in effect covering the injured party on the date of the accident. While the defendant offered a denial of claim form dated December 30, 2002, to that effect, there was no affidavit of service to establish that the form was, in fact, mailed to the plaintiff within 30 days of receipt of the claim (see Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co., supra). Regardless, “[s]trict compliance with the time requirements of both the statute and regulations may be obviated and the preclusion remedy rendered unavailable when denial of claims is premised on a lack of coverage” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; see Westchester County Med. Ctr. v Allstate Ins. Co., 283 AD2d 488, 489 [2001]). Here, a triable issue of fact exists as to whether coverage existed at the time of the accident at issue. Accordingly, neither party was entitled to summary judgment on this cause of action. H. Miller, J.P., Ritter, Goldstein and Skelos, JJ., concur.

—[*1]

Order, Supreme Court, New York County (Milton A. Tingling, J.), entered May 12, 2004, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.

In this action seeking recovery of no-fault benefits, Supreme Court erred in granting defendant insurer’s motion for summary judgment dismissing the complaint. The record does not establish, as a matter of law, that, under the circumstances, plaintiff failed to submit proof of his claims for medical expenses and lost wages within the applicable time limitations. While defendant remains free to raise as a defense at trial its claim that plaintiff is seeking a double recovery, the existing record does not establish such a defense as a matter of law. Finally, plaintiff is not precluded from asserting the claims at bar, based on injuries he allegedly incurred in a 1999 accident, by an assignment of benefits he executed in 1993, more than six years prior to that accident. Concur—Mazzarelli, J.P., Andrias, Friedman, Gonzalez and Catterson, JJ.

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In an action, inter alia, to recover unpaid no-fault benefits, the defendant appeals from an order of the Supreme Court, Suffolk County (Underwood, J.), dated May 25, 2004, which denied its motion to sever the causes of action to recover unpaid no-fault benefits asserted by the plaintiff.

Ordered that the order is reversed, on the facts and as a matter of discretion, with costs, the motion is granted, and the causes of action to recover no-fault benefits are severed.

The plaintiff, the assignee of 47 no-fault claims, commenced this action to recover unpaid no-fault benefits for medical services he allegedly provided to 47 different patients, the plaintiff’s assignors. Following joinder of issue, the defendant insurer moved to sever the 47 causes of action. The Supreme Court denied the motion. We reverse.

While the claims at issue are being prosecuted by a single assignee against a single insurer and all allege the erroneous nonpayment of no-fault benefits (see generally Hempstead Gen. Hosp. v Liberty Mut. Ins. Co., 134 AD2d 569 [1987]), they arise from 47 different automobile accidents on various dates in which the 47 unrelated assignors suffered diverse injuries and required different medical treatment. Moreover, the defendant persuasively contends that the reasons for the denial of benefits, as well as the defenses raised in its answer, are many and varied, and would necessarily entail mini-trials as to the individual claims. Under these circumstances, it was an improvident [*2]exercise of discretion to deny the motion to sever, since a single trial of all the claims would prove unwieldy and confuse the trier of fact (see Radiology Resource Network, P.C. v Fireman’s Fund Ins. Co., 12 AD3d 185 [2004]; Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp., 291 AD2d 536 [2002]; see also Deajess Med. Imaging, P.C. v GEICO Gen. Ins. Co., 2005 WL 823884, 2005 US Dist LEXIS 5957 [SD NY, Apr. 7, 2005]; Boston Post Rd. Med. Imaging, P.C. v Allstate Ins. Co., 2004 WL 1586429, 2004 US Dist LEXIS 13243 [SD NY, July 15, 2004]). Schmidt, J.P., Mastro, Rivera and Skelos, JJ., concur.

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In an action to recover unpaid no-fault insurance medical benefits, the defendant appeals (1) from so much of an order and judgment (one paper) of the Supreme Court, Nassau County (McCarty, J.), entered April 1, 2004, as, upon a decision of the same court dated January 23, 2004, granted that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action asserted by the plaintiff New York and Presbyterian Hospital, and, in effect, denied its cross motion for summary judgment dismissing the complaint, and is in favor of the plaintiff New York and Presbyterian Hospital and against it in the principal sum of $14,574, (2), as limited by its brief, from so much of an order of the same court entered June 30, 2004, as, in effect, upon reargument, adhered in part to the prior determination in the decision dated January 23, 2004, and (3) from so much of an order of the same court entered August 25, 2004, as denied its motion for leave to renew that branch of the plaintiff’s prior motion which was for summary judgment on the first cause of action.

Ordered that the appeal from the order entered June 30, 2004, is dismissed as no appeal lies from an order made upon reargument and adhering to the prior determination in a decision (see Matter of A & S Transp. Co. v County of Nassau, 154 AD2d 456 [1989]); and it is further,

Ordered that the appeal from the order entered August 25, 2004, is dismissed as [*2]academic in light of the determination of the appeal from the order and judgment; and it is further,

Ordered that the order and judgment is reversed insofar as appealed from, on the law, that branch of the motion which was for summary judgment on the first cause of action asserted by the plaintiff New York and Presbyterian Hospital is denied, and the decision entered June 30, 2004, and the order entered August 25, 2004, are vacated; and it is further,

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

The plaintiff made a prima facie showing of entitlement to judgment as a matter of law “by submitting evidentiary proof that the prescribed statutory billing forms had been mailed and received and that payment of no-fault benefits was overdue” (New York Hosp. Med. Ctr. of Queens v Motor Veh. Acc. Indem. Corp., 12 AD3d 429 [2004]). However, in opposition to the motion, the defendant established that it had previously and timely denied the same claim, and that the no-fault billing at issue was a resubmission of a claim to which the rule that a claim must be paid or denied within 30 days did not apply (see Hospital for Joint Diseases v Allstate Ins. Co., 5 AD3d 441, 442 [2004]).

Notwithstanding that the defendant established that its prior denial of the claim was timely, the defendant failed to establish its entitlement to summary judgment dismissing the complaint based on the intoxication exclusion (see Lynch v Progressive Ins. Co., 12 AD3d 570 [2004]; North v Travelers Ins. Co., 218 AD2d 901 [1995]). Adams, J.P., Santucci, Goldstein and Crane, JJ., concur.

—[*1]

Appeal from an order of the Supreme Court (Teresi, J.), entered September 1, 2004 in Albany County, which, inter alia, granted petitioner’s application pursuant to Workers’ Compensation Law § 29 (5) for judicial approval, nunc pro tunc, of a personal injury settlement.

During the course of his employment as a service technician at a motor vehicle repair shop, petitioner was injured when he was struck by a vehicle operated by a customer. Petitioner applied for and received $52,915 in workers’ compensation benefits from respondent, the employer’s workers’ compensation carrier, and also received first party benefits under the no-fault provisions of Insurance Law article 51. Thereafter, in a third-party action for personal injuries against the customer, petitioner negotiated a settlement in the amount of $175,000 and sought respondent’s approval pursuant to Workers’ Compensation Law § 29 (5). After respondent refused that approval, petitioner commenced this proceeding seeking, among other things, judicial approval of the settlement and an order deeming the workers’ compensation benefits paid by respondent to be payments made in lieu of no-fault benefits, thereby limiting respondent’s reimbursable lien to the amount paid in excess of $50,000, namely, $2,915. Supreme Court granted the petition and respondent appeals. [*2]

We find that Supreme Court did not abuse its discretion in approving petitioner’s settlement in the third-party action (see Singh v Ross, 12 AD3d 498, 499 [2004]; Matter of Banks v National Union Ins. Co., 304 AD2d 573, 573-574 [2003]). Workers’ Compensation Law § 29 (1) provides that a workers’ compensation carrier has the right to assert a lien against the proceeds of a claimant’s third-party action. However, the carrier may not assert a lien against proceeds received pursuant to Insurance Law § 5104 (a) “for compensation and/or medical benefits paid which were in lieu of first party benefits which another insurer would have otherwise been obligated to pay under [the No-Fault Automobile Insurance Law]” (Workers’ Compensation Law § 29 [1-a]; see Dietrick v Kemper Ins. Co. [American Motorists Ins. Co.], 76 NY2d 248, 251 [1990]; Matter of Figelman v Goldfarb, 257 AD2d 721, 722 [1999], lv denied 94 NY2d 753 [1999]). First party benefits are payments of up to $50,000 intended to reimburse the injured person for his or her “basic economic loss,” including lost wages and medical expenses (Insurance Law § 5102 [a], [b]; see Matter of Figelman v Goldfarb, supra at 722). Here, the workers’ compensation benefits that respondent paid were intended to compensate petitioner for his “basic economic loss” in the form of lost wages and medical expenses and, therefore, Supreme Court properly deemed $50,000 of those benefits to have been paid in lieu of first party no-fault benefits (see Dietrick v Kemper Ins. Co. [American Motorists Ins. Co.], supra at 252-253; Chambers v City of Ogdensburg, 239 AD2d 850, 850-851 [1997]).

Next, we are unpersuaded by respondent’s contention that the Insurance Law precludes petitioner from collecting no-fault benefits which, if true, would permit respondent to assert a lien against the settlement for the full amount of workers’ compensation benefits that it paid to petitioner. Insurance Law § 5103 (b) (3) (vi) provides that an insurer may exclude a person from no-fault coverage if that person was injured while he or she was “repairing, servicing or otherwise maintaining a motor vehicle if such conduct is within the course of a business of repairing, servicing or otherwise maintaining a motor vehicle and the injury occurs on the business premises.” It is undisputed that petitioner was servicing a vehicle in the course of his employment at the time he was injured. Thus, had petitioner been injured by the vehicle he was servicing, his conduct would not be considered the “use or operation” of that vehicle and he would be precluded from collecting no-fault benefits (see e.g. Matter of Empire Mut. Ins. Co. [Barone], 85 AD2d 201, 201-203 [1982], revd on other grounds 57 NY2d 833, 835 [1982]; Sando v Firemen’s Ins. Co. of Newark, N.J., 79 AD2d 774, 774 [1980]; see also Mem of State Dept of Ins, 1982 McKinney’s Session Laws of NY, at 2466). Here, however, petitioner’s injuries arose out of another person’s use and operation of a vehicle that was not being serviced by petitioner at the time. Accordingly, petitioner is a “[c]overed person” as defined by the Insurance Law and is eligible to collect no-fault benefits (see Insurance Law § 5102 [j]; Matter of Empire Mut. Ins. Co. [Barone], 57 NY2d 833, 835 [1982]; Matter of Farm Family Cas. Ins. Co. [Trapani], 301 AD2d 740, 741 [2003]).

Having determined that Insurance Law § 5103 (b) (3) (vi) is not applicable to petitioner, it is not necessary for us to address respondent’s contention that the no-fault carrier timely disclaimed coverage based on that exclusion.

Mercure, Carpinello, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed, without costs.