[*1]

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Jannine A. Gardineer of counsel), for appellant.

Harriette G. Zelman (Scahill Law Group, P.C., Bethpage, NY [David J. Tetlak], of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated May 23, 2019, the petitioner appeals from an order of the Supreme Court, Nassau County (Roy S. Mahon, J.), entered May 7, 2020. The order denied the petition and, in effect, dismissed the proceeding.

Ordered that the order is affirmed, with costs.

In May 2017, nonparty Eric Rhodes was injured when he was involved in a motor vehicle collision while operating a loaner vehicle owned by nonparty Staluppi Group of Dealerships and insured by Wesco Insurance Company (hereinafter Wesco). Government Employees Insurance Company (hereinafter GEICO) paid no-fault benefits to Rhodes for his injuries pursuant to an automobile liability policy issued to him. GEICO thereafter sought to recover the benefits paid to Rhodes from Wesco in a compulsory arbitration proceeding. In an arbitration award dated May 23, 2019, the arbitrator determined that Wesco, as insurer of the loaner vehicle operated by Rhodes, was liable for the benefits paid to Rhodes.

In August 2019, Wesco commenced this proceeding to vacate the arbitration award. The Supreme Court denied the petition and, in effect, dismissed the proceeding. Wesco appeals.

For the reasons set forth in Matter of Wesco Ins. Co. v GEICO Indem. Co. (211 AD3d 731 [2022] [decided herewith]), the Supreme Court properly denied the petition to vacate the arbitration award and, in effect, dismissed the proceeding. Connolly, J.P., Iannacci, Ford and Voutsinas, JJ., concur.

[*1]

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Jannine A. Gardineer of counsel), for appellant.

Scahill Law Group, P.C., Bethpage, NY (David J. Tetlak of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated September 26, 2019, the petitioner appeals from an order of the Supreme Court, Suffolk County (Andrew A. Crecca, J.), dated May 26, 2021. The order denied the petition to vacate the arbitration award and confirmed the arbitration award.

Ordered that the order is affirmed, with costs.

In August 2017, nonparty Dacora Motley was injured when she was involved in a motor vehicle collision while operating a loaner vehicle owned by nonparty Nissan of Huntington and insured by Wesco Insurance Company (hereinafter Wesco). GEICO Indemnity Company (hereinafter GEICO) paid basic no-fault benefits to Motley for her injuries pursuant to an automobile liability policy issued to her. GEICO thereafter sought to recover the benefits paid to Motley from Wesco in a compulsory arbitration proceeding. In an arbitration award dated September 26, 2019, the arbitrators determined that Wesco, as insurer of the loaner vehicle operated by Motley, was liable for the benefits paid to Motley.

In December 2019, Wesco commenced this proceeding seeking to vacate the arbitration award. The Supreme Court denied the petition and confirmed the award. Wesco appeals.

For the reasons set forth in Matter of Wesco Ins. Co. v GEICO Indem. Co. (211 AD3d 738 [2022] [decided herewith]), the Supreme Court properly denied the petition and confirmed the arbitration award.

Further, contrary to the petitioner’s contention, it failed to present evidence of actual bias or the appearance of bias on the part of one of the arbitrators (see Kotlyar v Khlebopros, 176 AD3d 793, 795 [2019]; Matter of Heller v Bedford Cent. Sch. Dist., 154 AD3d 754, 755 [2017]). Connolly, J.P., Iannacci, Ford and Voutsinas, JJ., concur.

[*1]

Harriette G. Zelman (Scahill Law Group, P.C., Bethpage, NY [David J. Tetlak], of counsel), for appellant.

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Jannine A. Gardineer of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated July 11, 2019, GEICO Indemnity Company appeals from an order of the Supreme Court, Nassau County (Jeffrey S. Brown, J.), entered December 16, 2019. The order granted the petition to vacate the arbitration award, vacated the arbitration award, and remitted the matter to the arbitrator for a rehearing and new determination.

Ordered that the order is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed.

In August 2017, nonparty Sarah Pierre was injured when she was involved in a motor vehicle collision while operating a loaner vehicle owned by nonparty Bay Ridge Volvo and insured by Wesco Insurance Company (hereinafter Wesco). GEICO Indemnity Company (hereinafter GEICO) paid basic no-fault benefits to Pierre for her injuries pursuant to an automobile liability policy issued to her (hereinafter the GEICO policy). GEICO thereafter sought to recover from Wesco the benefits paid to Pierre in a compulsory arbitration proceeding. In an arbitration award dated July 11, 2019, the arbitrator determined that Wesco, as insurer of the loaner vehicle operated by Pierre, was liable for the benefits paid to Pierre.

In October 2019, Wesco commenced this proceeding to vacate the arbitration award, and, in an order entered December 18, 2019, the Supreme Court granted the petition, vacated the arbitration award, and remitted the matter to the arbitrator for a rehearing and new determination. GEICO appeals.

Where, as here, the obligation to arbitrate arises through a statutory mandate, the arbitrator’s determination is subject to “closer judicial scrutiny” under CPLR 7511 (b) than it would receive had the arbitration been conducted pursuant to a voluntary agreement between the parties (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; see Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d 633, 634 [2008]). To be upheld, an [*2]award in a compulsory arbitration proceeding “must have evidentiary support and cannot be arbitrary and capricious” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d at 223; see Matter of Allstate Ins. Co. v Travelers Cos., Inc., 159 AD3d 982, 983 [2018]; Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 45-46 [2015]; Matter of Tri State Consumer Ins. Co. v High Point Prop. & Cas. Co., 127 AD3d 980, 981 [2015]). “Moreover, with respect to determinations of law, the applicable standard in mandatory no-fault arbitrations is whether ‘any reasonable hypothesis can be found to support the questioned interpretation’ ” (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d at 46, quoting Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 454 [1980]).

Here, the arbitrator’s determination that Wesco was liable for the benefits paid to Pierre was not arbitrary and capricious and was supported by the evidence. The mandatory personal injury protection (hereinafter PIP) endorsement in the GEICO policy excluded coverage for injuries sustained by the insured while occupying a vehicle other than the “Insured motor vehicle, with respect to which the coverage required by the New York Comprehensive Motor Vehicle Insurance Reparations Act is in effect.” The PIP endorsement defined “Insured motor vehicle” as a motor vehicle owned by the “insured and to which the bodily injury liability insurance of [the GEICO] policy applies and for which a specific premium is charged.” Since, among other things, the loaner vehicle was not owned by Pierre, the insured, it was not an “Insured motor vehicle” within the meaning of the PIP endorsement. Accordingly, the PIP endorsement in the GEICO policy did not provide coverage for the injuries Pierre sustained while operating the loaner vehicle.

Contrary to Wesco’s contention, the fact that the loaner vehicle constituted a “temporary substitute auto” pursuant to the separate “Bodily Injury Liability” section of the GEICO policy did not result in coverage pursuant to the mandatory PIP endorsement, as the definition of “Insured motor vehicle” in the PIP endorsement did not include a “temporary substitute auto.” Contrary to Wesco’s further contention, Pierre’s agreement with Bay Ridge Volvo, which authorized her to operate the loaner vehicle, did not relieve Wesco of its obligation to provide mandatory PIP coverage for Pierre (see 11 NYCRR 65-1.1, 65-1.7).

Accordingly, the Supreme Court should have denied Wesco’s petition and dismissed the proceeding.

Wesco’s remaining contention is without merit. Connolly, J.P., Iannacci, Ford and Voutsinas, JJ., concur.

[*1]

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Jannine A. Gardineer of counsel), for appellant.

Scahill Law Group, P.C., Bethpage, NY (David J. Tetlak of counsel), for respondent in proceeding No. 2.

In related proceedings pursuant to CPLR article 75, Wesco Insurance Company appeals from an order of the Supreme Court, Nassau County (Leonard D. Steinman, J.), entered May 7, 2020. The order, insofar as appealed from, denied the petition of Wesco Insurance Company to vacate an arbitration award dated May 23, 2019, and confirmed the arbitration award.

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

In March 2017, nonparty Linotte Dhaiti was injured when she was involved in a motor vehicle collision while operating a loaner vehicle owned by nonparty New Rochelle Hyundai, LLC, and insured by Wesco Insurance Company (hereinafter Wesco). GEICO Indemnity Company (hereinafter GEICO) paid no-fault benefits to Dhaiti for her injuries pursuant to an automobile liability policy issued to her. GEICO thereafter sought to recover the benefits paid to Dhaiti from Wesco in a compulsory arbitration proceeding. In an arbitration award dated May 23, 2019, the arbitrator determined that Wesco, as insurer of the loaner vehicle operated by Dhaiti, was liable for the benefits paid to Dhaiti.

In August 2019, Wesco commenced a proceeding to vacate the arbitration award. In an order entered May 7, 2020, the Supreme Court, inter alia, denied the petition and confirmed the arbitration award. Wesco appeals.

For the reasons set forth in Matter of Wesco Ins. Co. v GEICO Indem. Co. (211 AD3d 738 [2022] [decided herewith]), the Supreme Court properly denied Wesco’s petition to vacate the arbitration award, and confirmed the arbitration [*2]award. Connolly, J.P., Iannacci, Ford and Voutsinas, JJ., concur.

[*1]

Harriette G. Zelman (Scahill Law Group, P.C., Bethpage, NY [David J. Tetlak], of counsel), for appellant.

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Jannine A. Gardineer of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated May 30, 2019, the petitioner appeals from an order of the Supreme Court, Queens County (Leonard Livote, J.), entered May 13, 2020. The order denied the petition and dismissed the proceeding.

Ordered that the order is reversed, on the law, with costs, the petition is granted, the arbitration award dated May 30, 2019, is vacated, and the matter is remitted to the Supreme Court, Queens County, to remit the matter to the arbitrator for further proceedings consistent herewith.

In April 2018, nonparty Biru Saha entered into a rental agreement with nonparty New Country Motor Car Group, Inc. (hereinafter New Country), which authorized Saha to operate a loaner vehicle owned by New Country and insured by Wesco Insurance Company (hereinafter Wesco). Thereafter, Saha was injured when he was involved in a motor vehicle collision while operating the loaner vehicle. GEICO General Insurance Company (hereinafter GEICO) paid basic no-fault benefits to Saha for his injuries pursuant to an automobile liability policy issued to him. GEICO thereafter sought to recover the benefits paid to Saha from Wesco in a compulsory arbitration proceeding. In an arbitration award dated May 30, 2019, the arbitrator determined that GEICO was liable for the benefits paid to Saha.

In August 2019, GEICO commenced this proceeding to vacate the arbitration award. The Supreme Court denied the petition and dismissed the proceeding. GEICO appeals.

Where, as here, the obligation to arbitrate arises through a statutory mandate, the arbitrator’s determination is subject to “closer judicial scrutiny” under CPLR 7511 (b) than it would receive had the arbitration been conducted pursuant to a voluntary agreement between the parties (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; see Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d 633, 634 [2008]). To be upheld, an award in a compulsory arbitration proceeding “must have evidentiary support and cannot be arbitrary and capricious” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d at 223; [*2]see Matter of Allstate Ins. Co. v Travelers Cos., Inc., 159 AD3d 982, 983 [2018]; Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 45-46 [2015]; Matter of Tri State Consumer Ins. Co. v High Point Prop. & Cas. Co., 127 AD3d 980, 981 [2015]). “Moreover, with respect to determinations of law, the applicable standard in mandatory no-fault arbitrations is whether ‘any reasonable hypothesis can be found to support the questioned interpretation’ ” (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d at 46, quoting Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 454 [1980]).

Here, the arbitrator’s determination that GEICO was liable for the benefits paid to Saha was arbitrary and capricious and not supported by the evidence. The arbitrator’s interpretation of the rental agreement between Saha and New Country as relieving Wesco of its obligation to provide mandatory personal injury protection (hereinafter PIP) coverage was contrary to 11 NYCRR part 65, which provides, in effect, that all motor vehicle insurance policies must contain a mandatory PIP endorsement; expressly sets forth the language of the PIP endorsement; permits deviations from the prescribed language only upon prior approval; and prohibits any release, express or implied, from mandatory or optional PIP benefits (see 11 NYCRR 65-1.1, 65-1.7, 65-3.18). Moreover, for the reasons set forth in Matter of Wesco Ins. Co. v GEICO Indem. Co. (211 AD3d 738 [2022] [decided herewith]), the arbitrator’s determination that GEICO’s policy provided coverage to Saha under the circumstances of this case was not supported by any evidence in the record. Accordingly, the Supreme Court should have vacated the arbitration award (see Matter of Tri State Consumer Ins. Co. v High Point Prop. & Cas. Co., 127 AD3d at 981; Matter of Progressive Cas. Ins. Co. v New York State Ins. Fund, 47 AD3d at 634; Matter of Allstate Ins. Co. v American Arbitration Assn., 26 AD3d 374 [2006]). Connolly, J.P., Iannacci, Ford and Voutsinas, JJ., concur.

[*1]

Hollander Legal Group, P.C., Melville, NY (Allan S. Hollander and Brian Kaufman of counsel), for appellant-respondent.

The Wright Firm, LLC, Rochester, NY (Ronald F. Wright of counsel), for respondent-appellant.

In an action pursuant to Insurance Law § 5106 (c) for a de novo determination of claims for no-fault insurance benefits, the plaintiff appeals, and the defendant cross-appeals, from an order of the Supreme Court, Nassau County (Steven M. Jaeger, J.), dated October 8, 2020. The order, insofar as appealed from, denied the plaintiff’s motion for leave to enter a default judgment against the defendant. The order, insofar as cross-appealed from, denied the defendant’s motion to change venue of the action to Monroe County based upon the convenience of material witnesses.

Ordered that the order is reversed insofar as appealed from, on the law and in the exercise of discretion, and the plaintiff’s motion for leave to enter a default judgment against the defendant is granted; and it is further,

Ordered that the cross appeal is dismissed; and it is further,

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

The plaintiff, a no-fault insurance carrier, denied claims for reimbursement for medical treatment submitted by the defendant, a medical provider. Subsequently, the defendant commenced arbitration and was awarded the sum of $10,029.73. The plaintiff sought review of the award and the award was confirmed by a master arbitrator. The plaintiff thereafter commenced this action pursuant to Insurance Law § 5106 (c) for a de novo determination of claims for no-fault insurance benefits, in Nassau County, premised on the location of its headquarters and principal place of business. In the complaint, the plaintiff asserted that the defendant was not entitled to reimbursement as the services provided by the defendant were not medically necessary and were not related to the subject motor vehicle accident.

The plaintiff moved for leave to enter a default judgment against the defendant based upon the defendant’s failure to timely answer the complaint or appear in this action. The defendant failed to oppose the motion. Almost two months later, the defendant moved to change venue of the action to Monroe County pursuant to CPLR 510 (3), based upon the convenience of material witnesses. The plaintiff opposed the motion, contending that it was untimely and unsupported on [*2]the merits. In an order dated October 8, 2020, the Supreme Court denied both motions. As to the plaintiff’s motion, the court, in its discretion, found that the issuance of an award in the defendant’s favor, in light of the overall policy in favor of the resolution of litigation on the merits, warranted denial of the plaintiff’s motion. As to the defendant’s motion, the court determined that the defendant failed to satisfy any of the criteria set forth in CPLR 510 (3). The plaintiff appeals and the defendant cross-appeals.

Pursuant to CPLR 3215 (f), “[a]n applicant for a default judgment against a defendant must submit proof of service of the summons and complaint, proof of the facts constituting the claim, and proof of the defaulting defendant’s failure to answer or appear” (Countrywide Home Loans Servicing, L.P. v Vorobyov, 188 AD3d 803, 806 [2020]; see Global Liberty Ins. Co. v Haar Orthopaedics & Sports Med., P.C., 170 AD3d 1125, 1126 [2019]; Fried v Jacob Holding, Inc., 110 AD3d 56, 59 [2013]). To demonstrate the facts constituting the claim, the movant need only submit sufficient proof to enable a court to determine if the claim is viable (see Woodson v Mendon Leasing Corp., 100 NY2d 62, 71 [2003]; Fried v Jacob Holding, Inc., 110 AD3d at 60; Neuman v Zurich N. Am., 36 AD3d 601, 602 [2007]).

“In order to successfully oppose a motion for leave to enter a default judgment, a defendant who has failed to timely appear or answer the complaint must provide a reasonable excuse for the default and demonstrate the existence of a potentially meritorious defense to the action” (Maldonado v Mosquera, 186 AD3d 1352, 1353 [2020]). Where the defendant fails to demonstrate a reasonable excuse for its default, the court need not consider whether the defendant possesses a potentially meritorious defense to the action (see OneWest Bank v Schiffman, 175 AD3d 1543, 1545 [2019]). “[D]efaulters are deemed to have admitted all factual allegations contained in the complaint and all reasonable inferences that flow from them” (Rosenzweig v Gubner, 194 AD3d 1086, 1088 [2021] [internal quotation marks omitted]).

In support of its motion, the plaintiff submitted proof of service of the summons and complaint via delivery to an employee at the defendant’s actual place of business (see CPLR 308 [2]). In further support, the plaintiff submitted its attorney’s affirmation, inter alia, attesting to the defendant’s failure to answer or appear in this action, thereby admitting all traversable allegations (see Rokina Opt. Co. v Camera King, 63 NY2d 728, 730 [1984]; see also Global Liberty Ins. Co. v Haar Orthopaedics & Sports Med., P.C., 170 AD3d at 1126). The plaintiff also submitted, inter alia, a copy of the complaint verified by its counsel, its expert’s affirmed peer review, and the arbitration award and the master arbitration award affirming the original arbitration award, which were sufficient to establish that the plaintiff had a viable cause of action against the defendant (see Woodson v Mendon Leasing Corp., 100 NY2d at 71; Global Liberty Ins. Co. v Haar Orthopaedics & Sports Med., P.C., 170 AD3d at 1126).

Because the defendant failed to oppose the plaintiff’s motion, he failed to meet his burden of establishing a reasonable excuse. Accordingly, the Supreme Court’s denial of the plaintiff’s motion for leave to enter a default judgment against the defendant was an improvident exercise of discretion, and the plaintiff’s motion should have been granted.

In light of our determination, the cross appeal has been rendered academic. Rivera, J.P., Maltese, Ford and Taylor, JJ., concur.

[*1]

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.

Jaffe & Velazquez, LLP, New York (Thomas Torto of counsel), for respondent.

Order, Supreme Court, New York County (Arlene Bluth, J.), entered on or about September 24, 2021, which granted plaintiff Country-Wide Insurance Company’s motion for summary judgment and declared that it owes no further duty to defendants to pay any no-fault claims with respect to a specified motor vehicle accident involving defendant Maria Aguilar, unanimously affirmed, without costs.

Country-Wide satisfied its prima facie burden of showing that it exhausted the policy by submitting the policy declaration page, an affidavit by its no-fault claim supervisor responsible for Aguilar’s claim, and the payment ledger showing that it had paid out $50,000 to Elmhurst Hospital Center by May 21, 2018. Country-Wide was under no further obligation to pay defendants once the policy limits were exhausted (see Countrywide Ins. Co. v Sawh, 272 AD2d 245, 245 [1st Dept 2000]). Contrary to defendants’ contention, the affidavit by the no-fault claim supervisor, who had personal knowledge of the claim file and the procedures for processing no-fault claims, was sufficient to lay a foundation for admission of the documents as business records under CPLR 4518 (a) (see DeLeon v Port Auth. of N.Y. & N.J., 306 AD2d 146, 146 [1st Dept 2003]).

In response to Country-Wide’s prima facie showing, defendants submitted no evidence at all, much less evidence sufficient to establish the existence of material issues of fact requiring a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Furthermore, we reject defendants’ suggestion that Country-Wide was required to show that it complied with 11 NYCRR 65-3.15’s priority of payment rule to make its prima facie case, as defendants did not raise the issue as an affirmative defense in their answer although the answer contained more than 20 other affirmative defenses (see generally GMAC Mtge., LLC v Coombs, 191 AD3d 37, 50 [2d Dept 2020]; Aimatop Rest. v Liberty Mut. Fire Ins. Co., 74 AD2d 516, 517 [1st Dept 1980]).

We have considered defendants’ remaining contentions and find them unavailing. Concur—Manzanet-Daniels, J.P., Moulton, González, Rodriguez, Higgitt, JJ.

[*1]

The Rybak Firm, PLLC, Brooklyn, NY (Oleg Rybak and Maksim Leyvi of counsel), for appellants.

McDonnell Adels & Klestzick, PLLC, Garden City, NY (Michael J. Giordano of counsel), for respondents.

In an action, inter alia, for a judgment declaring that the plaintiffs are not obligated to pay certain no-fault claims, the defendants AB Medical Supply, Inc., AB Quality Health Supply Corp., ACH Chiropractic, P.C., Energy Chiropractic, P.C., FJL Medical Services, P.C., JFL Medical Care, P.C., JPF Medical Services, P.C., Jules Francois Parisien, Kings Rehab Acupuncture, P.C., and Maria Shiela Masigla appeal from a judgment of the Supreme Court, Nassau County (R. Bruce Cozzens, Jr., J.), entered November 13, 2019. The judgment, upon an order of the same court entered October 9, 2019, granting that branch of the plaintiffs’ motion which was for summary judgment on the complaint insofar as asserted against those defendants, inter alia, declared that the plaintiffs have no duty to provide coverage for the subject no-fault claims.

Ordered that the judgment is affirmed, with costs.

In April 2017 and June 2017, within days of the defendants Jerry Noland and Franklin Blasco procuring automobile insurance policies, the vehicles for which the policies were issued were involved in two separate automobile collisions when they each came into contact with two separate taxicabs. In or around April 2018, the plaintiffs, National General Insurance Online, Inc., and National General Insurance Company, commenced this action against Noland, Blasco and other individuals involved in the collisions, as well as, among others, the defendants AB Medical Supply, Inc., AB Quality Health Supply Corp., ACH Chiropractic, P.C., Energy Chiropractic, P.C., FJL Medical Services, P.C., JFL Medical Care, P.C., JPF Medical Services, P.C., Jules Francois Parisien, Kings Rehab Acupuncture, P.C., and Maria Shiela Masigla (hereinafter collectively the medical provider defendants), alleging, inter alia, that the collisions were intentional. After the Supreme Court granted the plaintiffs’ motion for leave to enter a default judgment against, among others, the individuals involved in the two collisions, the plaintiffs moved, among other things, for summary judgment on the complaint insofar as asserted against the medical provider defendants, arguing, inter alia, that they are not obligated to pay no-fault claims submitted to them by the medical provider defendants in connection with the collisions. In an order entered October 9, 2019, the Supreme Court granted that branch of the motion. A judgment was entered November 13, 2019. The medical provider defendants appeal. We affirm.

[*2] The medical provider defendants failed to sustain their burden of demonstrating that the branch of the plaintiffs’ motion which was for summary judgment on the complaint insofar as asserted against them was premature (see CPLR 3212 [f]; Shah v MTA Bus Co., 201 AD3d 833 [2022]). Further, an intentional and staged collision caused in furtherance of an insurance fraud scheme is not a covered accident under a policy of insurance (see Matter of Liberty Mut. Ins. Co. v Goddard, 29 AD3d 698, 699 [2006]), and here, the plaintiffs established their prima facie entitlement to judgment as a matter of law by demonstrating, through admissible evidence, that the subject collisions were intentionally caused or staged (see State Farm Mut. Auto. Ins. Co. v Laguerre, 305 AD2d 490 [2003]; cf. Progressive Advanced Ins. Co. v McAdam, 139 AD3d 691 [2016]; Nationwide Gen. Ins. Co. v Bates, 130 AD3d 795 [2015]). In opposition, the medical provider defendants failed to raise a triable issue of fact as to whether the collisions were intentionally caused or staged. Accordingly, the Supreme Court properly granted that branch of the plaintiffs’ motion which was for summary judgment on the complaint insofar as asserted against the medical provider defendants. Barros, J.P., Brathwaite Nelson, Chambers and Wan, JJ., concur.

[*1]

The Rybak Firm, PLLC, Brooklyn (Maksim Leyvi of counsel), for appellants.

Correia, Conway & Stiefeld, White Plains (Nicole M. Bynum of counsel), for respondents.

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered on or about October 7, 2021, which granted plaintiff insurers’ motion for summary judgment to the extent of declaring that defendant medical providers are not entitled to any no-fault benefits under claimant-defendant Sandra Valera’s automobile insurance policy, unanimously reversed, on the law, without costs, the motion denied, the declaration vacated, and the matter remanded for further proceedings consistent with this decision.

In June 2019, the claimant was injured in a collision involving a vehicle that she insured under an automobile insurance policy issued by plaintiff insurers. The policy included an endorsement entitling the claimant to receive payment for accident-related medical expenses, and entitling her treating medical providers to collect her assigned no-fault benefits. In January 2020, the insurers filed this action for a declaration of no-coverage and an injunction barring defendant medical providers from seeking any no-fault reimbursement under the claimant’s automobile insurance policy. The insurers alleged that the claimant had intentionally and materially misrepresented her home address in procuring the policy, as the proper policy address was not the Wappingers Falls address she had stated, but rather, an address in the Bronx.

The insurers submitted undisputed evidence that the claimant misrepresented her address based on her testimony at the examination under oath (EUO). However, the insurers failed to establish, as a matter of law, that the alleged misrepresentation as to the correct address was a material misrepresentation. The affidavit of the insurers’ underwriter is conclusory and not supported by relevant documentary evidence such as underwriting manuals, rules, or bulletins (see 463 Saddle Up Tremont LLC v Union Mut. Fire Ins. Co., 205 AD3d 511, 511-512 [1st Dept 2022]; BX Third Ave. Partners, LLC v Fidelity Natl. Tit. Ins. Co., 112 AD3d 430, 430 [1st Dept 2013]; Feldman v Friedman, 241 AD2d 433, 434 [1st Dept 1997]). We therefore deny the insurers’ motion for summary judgment without prejudice and remand the matter for further discovery concerning the insurers’ claim and underwriting practices and guidelines. Concur—Webber, J.P., Kern, Singh, Moulton, Shulman, JJ.

[*1]

Lawrence N. Rogak, LLC, Oceanside, NY, for appellant.

Law Offices of Michael H. Joseph, PLLC, White Plains, NY (Clifford S. Nelson of counsel), for respondent.

In an action to recover first-party no-fault benefits under a policy of automobile insurance, the defendant appeals from (1) an order of the Supreme Court, Westchester County (Sam D. Walker, J.), dated September 30, 2017, and (2) a judgment of the same court, dated October 26, 2017. The order granted the plaintiff’s motion for summary judgment in the principal sum of $44,573.86. The judgment, upon the order, is in favor of the plaintiff and against the defendant in the principal sum of $44,573.86.

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

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

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

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment in the action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

In 2008, a vehicle operated by the plaintiff and insured by the defendant, Merchants Mutual Insurance Company, was struck in the rear by a sanitation truck owned by the City of White Plains. The plaintiff subsequently underwent surgery to remove his L5-S1 disc and replace it with an artificial lumbar disc. After the defendant denied the subject claims on the ground that the surgery was not medically necessary, the plaintiff commenced the instant action to recover first-party no-fault benefits. The defendant answered the complaint and the plaintiff later moved for summary judgment in the principal sum of $44,573.86, representing unpaid first-party no-fault benefits under the insurance policy. The defendant opposed the motion. The Supreme Court granted the plaintiff’s motion and issued a judgment in favor of the plaintiff in the principal sum of $44,573.86. The defendant appeals.

“The No-Fault Automobile Insurance Law defines ‘first party benefits’ as ‘payments [*2]to reimburse a person for basic economic loss on account of personal injury arising out of the use or operation of a motor vehicle’ ” (Matter of Johnson v Buffalo & Erie County Private Indus. Council, 84 NY2d 13, 18 [1994], quoting Insurance Law § 5102 [b]; see Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 47 [2015]). The no-fault law defines “basic economic loss” (Insurance Law § 5102 [a]) as “[a]ll necessary expenses incurred for: (i) medical, hospital . . . [and] surgical . . . services” (id. § 5102 [a] [1] [i]) as well as loss of earnings from work. Like the statute, the regulations promulgated thereunder expressly state that reimbursable medical expenses consist of “necessary expenses” (11 NYCRR 65-1.1; see Long Is. Radiology v Allstate Ins. Co., 36 AD3d 763, 765 [2007]).

A plaintiff makes a prima facie showing of entitlement to judgment as a matter of law by submitting evidence that the prescribed statutory billing forms were mailed and received, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 25 NY3d 498, 501 [2015]; A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779, 780 [2007]; New York & Presbyt. Hosp. v Allstate Ins. Co., 29 AD3d 547, 547 [2006]).

In support of his motion, the plaintiff submitted, inter alia, the disputed claims, the defendant’s form denials, the affidavit of his surgeon, Richard Peress, and the affidavit of Christine Taylor, assistant director of patient accounts for Phelps Memorial Hospital (hereinafter the hospital).

The plaintiff demonstrated, prima facie, that the prescribed statutory billing forms relative to the medical services provided by Peress were mailed and received, and that the defendant failed to pay or validly deny the claims within the permissible 30 days (see Insurance Law § 5102 [a] [1]; Global Liberty Ins. Co. v W. Joseph Gorum, M.D., P.C., 143 AD3d 768 [2016]; New York & Presbyt. Hosp. v Selective Ins. Co. of Am., 43 AD3d 1019 [2007]; Hobby v CNA Ins. Co., 267 AD2d 1084 [1999]; see also DeGiorgio v Racanelli, 136 AD3d 734 [2016]; Geffner v North Shore Univ. Hosp., 57 AD3d 839 [2008]). In opposition, the defendant failed to submit evidence in admissible form sufficient to raise a triable issue of fact as to whether the claimed benefits were properly denied on the ground of lack of medical justification (see 11 NYCRR 65-3.8 [b] [4]).

Contrary to the defendant’s contention, the plaintiff had standing to pursue his claims for no-fault benefits (see Allstate Ins. Co. v Kapeleris, 183 AD3d 626 [2020]).

Given that the amount of the outstanding no-fault benefits relative to the medical services provided by Peress exceeds the principal sum awarded in the judgment, we need not reach the parties’ remaining contentions, including whether the plaintiff was entitled to no-fault benefits relative to the medical services provided by the hospital.

Accordingly, we affirm the judgment. Barros, J.P., Iannacci, Chambers and Christopher, JJ., concur.