—[*1]

In an action to recover no-fault benefits under an insurance contract, the defendant appeals from an order of the Supreme Court, Nassau County (Bucaria, J.), dated March 17, 2005, which granted the motion of the plaintiff New York and Presbyterian Hospital, as assignee of Yaakov Elman, for summary judgment on the first cause of action and denied its cross motion for summary judgment dismissing that cause of action.

Ordered that the order is reversed, on the law, with costs, the motion is denied, the cross motion is granted, and the first cause of action is dismissed.

The Supreme Court should have denied the motion of the plaintiff New York and Presbyterian Hospital, as assignee of Yaakov Elman (hereinafter the hospital), for summary judgment on the first cause of action to recover no-fault benefits under an insurance contract its assignee had with the defendant Allstate Insurance Company (hereinafter the insurer). The hospital failed to establish its entitlement to judgment as a matter of law (see CPLR 3212; Alvarez v Prospect Hosp., 68 NY2d 320-327).

The Supreme Court should have granted the insurer’s cross motion for summary judgment dismissing the first cause of action. The insurer made a prima facie showing, through the affidavits of its claims representatives, the “denial of claim” forms sent to the hospital and to Mount Sinai Hospital (the healthcare provider whose claim exhausted the policy limits), and its payment [*2]log listing all payments made to other healthcare providers under the subject policy, that it had exhausted the policy’s coverage limits before it became obligated to pay the hospital’s claim and that such payments were made in compliance with 11 NYCRR 65-3.15 (see Nyack Hosp. v General Motors Acceptance Corp., 27 AD3d 96 [2005]). In opposition, the hospital failed to raise a triable issue of fact.

The hospital’s remaining contentions are without merit. Adams, J.P., Skelos, Fisher and Lunn, JJ., concur.

—[*1]

In an action to recover no-fault insurance benefits under certain insurance contracts, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Dunne, J.), dated August 18, 2005, which granted the defendant’s motion to vacate a judgment entered April 1, 2005, upon its failure to appear or answer, awarding the plaintiffs the principal sum of $28,060.13, and for an extension of time to answer pursuant to CPLR 3012 (d), and granted the defendant’s separate motion to quash an information subpoena.

Ordered that the order is affirmed, with costs.

The Supreme Court providently exercised its discretion in granting the defendant’s motion to vacate its default in answering and for an extension of time to answer pursuant to CPLR 3012 (d). The defendant demonstrated both a reasonable excuse for its brief delay in serving an answer, and potentially meritorious defenses. Furthermore, there is a strong public policy in favor of resolving cases on the merits, and the default was not willful, nor was there a showing of prejudice to the plaintiffs (see Harcztark v Drive Variety, Inc., 21 AD3d 876 [2005]; Bunch v Dollar Budget, Inc., 12 AD3d 391 [2004]; Orwell Bldg. Corp. v Bessaha, 5 AD3d 573 [2004]; Sippin v Gallardo, 287 AD2d 703 [2001]).

The defendant’s motion to quash the information subpoena was properly granted (see CPLR 2304). Florio, J.P., Santucci, Mastro and Rivera, JJ., concur.

—[*1]In an action to recover no-fault medical payments, the plaintiffs New York and Presbyterian Hospital, as assignee of William Browne, and New York Hospital Medical Center of Queens, as assignee of Amy Kazane, appeal from an order of the Supreme Court, Nassau County (Feinman, J.), dated July 15, 2005, which granted the defendant’s motion to vacate a judgment of the same court entered March 11, 2005, upon its failure to appear or answer the complaint, and for leave to serve a late answer.

Ordered that the order is affirmed, with costs.

To vacate its default, the defendant was required to demonstrate both a reasonable excuse for the default and a meritorious defense (see CPLR 5015 [a] [1]; Hospital for Joint Diseases v Dollar Rent A Car, 25 AD3d 534 [2006]; Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432 [2004]). The defendant made that showing. Accordingly, the Supreme Court providently exercised its discretion in granting the defendant’s motion to vacate the judgment entered upon its failure to appear or answer the complaint, and for leave to interpose a late answer. Florio, J.P., Santucci, Mastro, Rivera and Covello, JJ., concur.

—[*1]

Mercure, J.P. (1) Appeal from an order of the Supreme Court (Stein, J.), entered December 21, 2004 in Greene County, which, inter alia, granted petitioner’s application pursuant to CPLR 7511 to vacate an arbitration award, and (2) motion to dismiss appeal.

The parties are automobile insurance companies who insure, respectively, two policyholders involved in a motor vehicle accident that occurred in July 2001. After paying $50,000 in no-fault benefits, respondent filed an application for mandatory arbitration with Arbitration Forums, Inc., a company that administers no-fault arbitrations in New York (see Insurance Law § 5105). In January 2004, an arbitrator rendered a decision finding that “[respondent] (Selective) submitted proof [of] negligence against [petitioner] (Utica), 70%, comparative negligence applied.” The determination further stated that “Comp[aritive] Neg[ligence] applies, find [respondent]—30%[;] [petitioner]—70%” and awarded $35,000 to respondent. After receiving the arbitrator’s findings, petitioner commenced this CPLR article 75 proceeding seeking an order vacating the arbitrator’s determination. Respondent cross-moved for confirmation of the award. Supreme Court, finding the arbitrator’s award to be “exceedingly indefinite,” vacated the award and remanded the matter to the arbitrator to clarify her findings. [*2]Respondent did not seek a stay of the court’s order, but instead filed an appeal to this Court.

Meanwhile, the arbitrator issued an amended decision indicating that the “liability percentage was reversed,” finding respondent’s insured to have been 70% at fault and petitioner’s insured to have been 30% at fault, and reducing respondent’s award to $15,000. Upon respondent’s petition for vacatur, Supreme Court concluded that the arbitrator’s amended decision further confounded the issue. The court vacated the amended award and remanded the matter to the arbitrator for further guidance. In a second amended decision, the arbitrator again awarded respondent $15,000. Petitioner then moved to dismiss this appeal as moot, asserting that the arbitrator has now issued a definitive decision establishing liability.

It is well settled that “an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; see Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 810-811 [2003], cert denied 540 US 1017 [2003]). Here, it cannot be said that a determination by this Court would not affect the rights of the parties. A holding that Supreme Court erred in vacating the award would result in reinstatement of the original award. On the other hand, if the Court upholds the vacatur, the parties will be bound by the most recent amended award—subject to any right of respondent to challenge that award—which purports to reverse the percentages of liability assigned in the original award. Inasmuch as the parties’ rights and liabilities will be directly affected by our resolution of this appeal, the dispute is justiciable and petitioner’s motion is therefore denied.

Turning to the merits, we conclude that Supreme Court properly vacated the initial arbitration award. Where arbitration is compulsory, “the standard for judicial review of the award is more exacting than in voluntary arbitration” (Matter of Furstenberg [Aetna Cas. & Sur. Co.—Allstate Ins. Co.], 49 NY2d 757, 758 [1980]) and “[t]o be upheld, an award . . . must have evidentiary support and cannot be arbitrary and capricious” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]). Particularly relevant here, an award may be vacated where the arbitrator “so imperfectly executed it that a final and definite award upon the subject matter submitted was not made” (CPLR 7511 [b] [1] [iii]; see Matter of Meisels v Uhr, 79 NY2d 526, 536 [1992]).

As Supreme Court explained, the original award is internally inconsistent because it states that respondent was 70% negligent, yet apportions only 30% of fault against respondent. Further confusion was created by the arbitrator’s incorrect statement that respondent’s insured was cited for a traffic violation at the scene, whereas it was in fact petitioner’s insured who was cited. Finally, we note that in seeking to vacate the first amended award—which suffered from many of the same infirmities as the original award—respondent itself characterized the award as “ambiguous and indefinite and as written, fail[ing] to present a coherent, rational determination.” Under these circumstances, we agree with Supreme Court that vacatur of the original award was required.

Respondent’s remaining contentions are either academic, unsupported by the record or otherwise lacking in merit.

Crew III, Peters, Mugglin and Kane, JJ., concur. [*3]Ordered that the motion is denied, without costs. Ordered that the order is affirmed, without costs.

—[*1]

Cardona, P.J. Appeal from an order of the Supreme Court (Malone, Jr., J.), entered June 23, 2005 in Albany County, which, inter alia, granted plaintiff’s motion to vacate an order dismissing the complaint.

In this action for payment of no-fault benefits for medical expenses arising from injuries allegedly sustained in a motor vehicle accident, defendant moved for dismissal of the complaint, pursuant to CPLR 3126, claiming plaintiff’s willful failure to respond to certain discovery demands. Upon plaintiff’s default in responding to that motion, Supreme Court dismissed the complaint in February 2005. Thereafter, plaintiff moved to vacate that order. Supreme Court (1) granted plaintiff’s request, finding a reasonable excuse for the default in responding to the motion and a potentially meritorious claim, and (2) upon consideration of the merits of the underlying motion, taking into account plaintiff’s response, denied defendant’s motion to dismiss the complaint pursuant to CPLR 3126. This appeal by defendant ensued.

The sole issue raised by defendant on this appeal is its contention that Supreme Court erred in providing relief to plaintiff because she failed to appeal the February 2005 order dismissing the complaint pursuant to CPLR 3126 and, therefore, a motion to vacate pursuant to CPLR 5015 (a) (1) was not appropriate. In our view, the court proceeded properly under the particular circumstances herein. While there is no question that, in a properly contested motion[*2]“predicated upon CPLR 3126, an appeal of [the resulting] order or judgment is the proper and sole remedy for the defaulting party” (Pinapati v Pagadala, 244 AD2d 676, 677 [1997]; see Schwenk v St. Peter’s Hosp. of City of Albany, 215 AD2d 906, 908 [1995], lv dismissed 86 NY2d 838 [1995]), here, the default that plaintiff sought to vacate was her default in opposing defendant’s motion to preclude in the first instance. Therefore, Supreme Court did not err in entertaining her motion to vacate (see generally Sik Bun Yuen v Huang, 18 AD3d 460 [2005]; State Empls. Fed. Credit Union v Starke, 274 AD2d 656, 657-658 [2000]; 10 Carmody-Wait 2d § 70:33 [2005]).

Mercure, Peters, Carpinello and Rose, JJ., concur. Ordered that the order is affirmed, with costs.

—[*1]

Cardona, P.J. Appeal from an order of the Supreme Court (Connor, J.), entered October 15, 2004 in Columbia County, which granted petitioner’s application pursuant to Workers’ Compensation Law § 29 (5) for judicial approval, nunc pro tunc, of a personal injury settlement.

In January 1996, petitioner sustained injuries in a motor vehicle accident while working for her employer. Petitioner received workers’ compensation benefits from her employer’s insurance carrier, respondent CNA Insurance Companies (hereinafter respondent), as well as first-party benefits pursuant to the no-fault provisions of the Insurance Law. Thereafter, petitioner commenced a third-party negligence action against the driver of the other motor vehicle, which she settled for $32,500. However, petitioner failed to obtain consent of the settlement from respondent, as required pursuant to Workers’ Compensation Law § 29 (5). Petitioner thereafter commenced this proceeding seeking, among other things, judicial approval, nunc pro tunc, of the third-party settlement. Supreme Court approved the settlement, however, this Court reversed on the basis that the supporting documentation was insufficient and we remitted the matter for further proceedings (306 AD2d 677, 678-679 [2003]). Following [*2]petitioner’s submission of additional documentation, petitioner again sought judicial approval of the third-party settlement, which Supreme Court granted, prompting this appeal.

Supreme Court reviewed all the relevant factors in exercising its discretionary authority to grant petitioner’s request. Notably, petitioner submitted evidence which suggested that it would have been difficult to prove that she had suffered a serious injury as a result of the accident. Furthermore, it is apparent that respondent suffered no prejudice from petitioner’s delay in seeking approval (see Neblett v Davis, 260 AD2d 559, 560 [1999]). We note that an application for a nunc pro tunc order approving a third-party settlement must normally be made within three months of the settlement date (see Workers’ Compensation Law § 29 [5]). Under all the circumstances herein, we, however, do not conclude that Supreme Court abused its broad discretion in approving this settlement (see Severino v Liberty Mut. Ins. Co., 238 AD2d 837, 838 [1997]; Borrowman v Insurance Co. of N. Am., 198 AD2d 891 [1993]).

Crew III, Spain, Mugglin and Lahtinen, JJ., concur. Ordered that the order is affirmed, with costs.

—[*1]

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 (O’Connell, J.), entered April 20, 2005, which granted that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action, asserted on behalf of the plaintiff Mount Sinai Hospital, as assignee of Trinidad Goforth, and, in effect, denied that branch of its cross motion which was for summary judgment dismissing the first cause of action.

Ordered that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion which was for summary judgment on the first cause of action and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, with costs to the appellant.

In support of that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action, asserted on behalf of the plaintiff Mount Sinai Hospital, as assignee of Trinidad Goforth (hereinafter Mount Sinai), sufficient evidentiary proof was submitted to establish, prima facie, that the defendant, Allstate Insurance Company (hereinafter Allstate), did not pay or deny Mount Sinai’s claim for no-fault medical payments within 30 days as required by 11 NYCRR 65-3.8 (c). However, the evidence submitted by Allstate in opposition to the motion and in support of [*2]that branch of its cross motion which was for summary judgment dismissing the first cause of action, while insufficient to establish its prima facie entitlement to judgment as a matter of law, was sufficient to raise a triable issue of fact as to whether Mount Sinai complied with a demand for verification in accordance with the mandates of 11 NYCRR former 65.15 (g) (1) (i) and (2) (iii). Until it is established when the 30-day period within which Allstate was required to respond began to run, any claim for payment was premature (see 11 NYCRR former 65.15 [g] [1] [i]; [2] [iii]; 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, 340 [2002]; Westchester County Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 262 AD2d 553 [1999]; see also Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]).

Accordingly, the Supreme Court correctly denied that branch of the cross motion which was for summary judgment dismissing the first cause of action, but should not have granted that branch of the motion which was for summary judgment on the first cause of action. Cozier, J.P., Santucci, Spolzino and Skelos, JJ., concur.

—[*1]

Mugglin, J. Appeal from an order of the Supreme Court (Hummel, J.), entered September 14, 2004 in Columbia County, which, inter alia, denied petitioner’s application pursuant to CPLR 7503 to stay arbitration between the parties.

Petitioner argues that respondents failed to comply with a condition precedent to supplemental uninsured motorist (hereinafter SUM) coverage when they allegedly did not return a “Proof of Claim” form as soon as practicable. On June 8, 2003, 16-year-old respondent Deanna Delaney sustained serious injuries (including fractures requiring surgery) while a passenger in a vehicle that was involved in a single vehicle accident in Tennessee. Her mother, respondent Penny Mackey, was an insured under a policy issued by petitioner that included SUM coverage of $25,000 per person, $50,000 per accident. By letter dated July 1, 2003, respondents’ attorney notified petitioner of a no-fault claim and a “potential uninsured/underinsured motorist claim” as a result of the accident. Respondents’ attorney sent another letter dated July 15, 2003 enclosing a police report of the accident and indicating no coverage existed from any other policy in the household or from the vehicle involved in the accident.

In January 2004, respondents’ attorney informed petitioner that a SUM claim would be pursued. Petitioner responded by letter dated January 8, 2004 in which it sought additional information and enclosed a “Proof of Claim” form that it requested the insured complete and return to its office. Copies of Delaney’s medical records were sent to petitioner in February 2004. On March 29, 2004, however, petitioner disclaimed coverage because it had not yet received the completed “Proof of Claim” form. The form, which ostensibly had been misplaced, was sent to petitioner on April 14, 2004, but petitioner stood by its disclaimer. In June 2004, respondents served a notice of arbitration regarding the SUM claim. Petitioner sought a permanent stay of the arbitration. Supreme Court denied the petition and this appeal ensued.

We affirm. The Court of Appeals has recently held that “where an insured previously gives timely notice of the accident, the carrier must establish that it is prejudiced by a late notice of SUM claim before it may properly disclaim coverage” (Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468, 476 [2005]; see Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491, 496-497 [2002]; cf. Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 339-340 [2005]). The rationale in Rekemeyer applies here, as respondents’ attorney supplied prompt written notice of the accident, made a claim for no-fault benefits and indicated that SUM coverage was implicated. Written notice regarding a SUM claim was repeated at least twice over the ensuing six months. Respondents forwarded to petitioner the police accident report of the accident as well as the pertinent medical records. Petitioner does not deny receiving any of these various letters and documents from respondents. Petitioner failed to show any prejudice and, under the circumstances of this case, should not be permitted to disclaim SUM coverage.

Crew III, J.P., Peters and Spain, JJ., concur. Ordered that the order is affirmed, with costs.

—[*1]

In an action to recover no-fault medical payments under an insurance contract, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Cozzens, J.), April 6, 2005, as denied those branches of their motion which were 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 provision thereof granting that branch of the cross motion which was for summary judgment dismissing the second cause of action, and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements, and the second cause of action is reinstated.

The Supreme Court correctly granted the branch of the defendant insurer’s cross motion which was for summary judgment dismissing the first cause of action, asserted on behalf of the plaintiff St. Vincent’s Hospital & Medical Center (hereinafter St. Vincent’s), as the defendant established that St. Vincent’s failed to submit its claim within 45 days after rendition of medical services (see 11 NYCRR 65-1.1). St. Vincent’s legal and factual arguments in opposition are without merit.

The court erred, however, in granting the branch of the defendant insurer’s cross [*2]motion which was for summary judgment dismissing the second cause of action, asserted on behalf of the plaintiff Brooklyn Hospital Center. Numerous questions of fact exist as to how this claim was processed in 2002 and again in 2004, whether it should be paid by a workers’ compensation carrier, and even the correct amount thereof. As such, neither party demonstrated its prima facie entitlement to judgment as a matter of law on the second cause of action.

The parties’ remaining contentions are without merit. Adams, J.P., S. Miller, Ritter and Lifson, JJ., concur.

—[*1]

In an action to recover no-fault medical payments under insurance contracts, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Phelan, J.), dated January 20, 2004, as denied that branch of their motion which was for summary judgment on the first cause of action, and the defendant cross-appeals from so much of the same order as denied its cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from; and it is further,

Ordered that the order is reversed insofar as cross-appealed from, on the law, the cross motion is granted, and the complaint is dismissed; and it is further,

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

The Supreme Court improperly denied that branch of the defendant’s cross motion which was for summary judgment dismissing the first cause of action to recover payments for medical services provided by Central Suffolk Hospital. “An insurer is not obligated to pay or deny a claim until it has received verification of all relevant information requested (see 11 NYCRR 65.15 [g] [1] [i]; [2] [iii])” (St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338, [*2]340 [2002]). Here, in the proof offered in response to the defendant’s prima facie showing of entitlement to summary judgment, the plaintiff Central Suffolk Hospital, as assignee of Renard Legette, admitted receiving the defendant’s initial request for verification of the claim, yet failed to state what response, if any, was made. Pursuant to 11 NYCRR 65-3.8 (a) (1) and (b) (3), on the undisputed facts presented, the defendant was entitled to summary judgment dismissing the plaintiffs’ first cause of action (see Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]).

The Supreme Court also improperly denied the branch of the defendant’s cross motion which was for summary judgment dismissing the second cause of action to recover for medical services provided by White Plains Hospital Center (hereinafter White Plains). As noted by the Supreme Court, the principal amount of the claim, $733.91, has been paid, leaving only the portion of the second cause of action seeking interest and an award of an attorney’s fee. Although White Plains maintained before the Supreme Court that it did not receive either of the requests for verification which the defendant asserted were sent by mail on May 21, 2003, and June 23, 2003, White Plains provided the verification of claim to the defendant on July 14, 2003. In view of this circumstance, the assertion that the claim underlying the second cause of action was not paid in a timely way, which is the predicate for the plaintiffs’ claim for interest and an award of an attorney’s fee, is without basis under 11 NYCRR 65-3.8. Adams, J.P., Krausman, Rivera and Lifson, JJ., concur.