—[*1]

Appeal from an order and judgment (one paper) of the Supreme Court, Ontario County (Craig J. Doran, A.J.), dated April 23, 2004. The order and judgment, insofar as appealed from, denied that part of defendant’s motion for summary judgment dismissing the first cause of action.

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

Memorandum: Plaintiffs commenced this action after defendant refused to continue providing no-fault insurance benefits to Patricia Simmons (plaintiff). Defendant moved for summary judgment dismissing the complaint, and Supreme Court granted defendant’s motion only in part, denying the motion with respect to the first cause of action but otherwise dismissing the complaint. We affirm.

Contrary to the contention of defendant, it failed to meet its “heavy burden of showing lack of cooperation of its insured” as a matter of law (Nationwide Mut. Ins. Co. v Graham, 275 AD2d 1012, 1013 [2000]; see Thrasher v United States Liab. Ins. Co., 19 NY2d 159, 168-169 [1967]). Furthermore, defendant submitted conflicting medical opinions concerning the degree of plaintiff’s disability from work, thereby raising an issue of credibility for the trier of fact to resolve and rendering summary judgment inappropriate (see e.g. Gedon v Bry-Lin Hosps., 286 AD2d 892, 894 [2001], lv denied 98 NY2d 601 [2002]; Cavallaro v Baker, 187 AD2d 976 [1992]). By failing to establish that plaintiff was able to return to work, defendant failed to establish that plaintiff’s alleged refusal to participate in vocational rehabilitation constituted ” ‘willful and avowed obstruction’ ” (Thrasher, 19 NY2d at 168; see Matter of New York Cent. Mut. Fire Ins. Co. [Salomon], 11 AD3d 315, 316 [2004]). Present—Hurlbutt, J.P., Smith, Pine, Lawton and Hayes, JJ.

—[*1]

Motion by the Superintendent of the New York State Insurance Department for leave to reargue an appeal from an order of the Supreme Court, Kings County, dated October 17, 2002, which was determined by decision and order of this Court dated February 2, 2004, and in effect, for clarification of the decision and order of this Court dated February 2, 2004 [4 AD3d 355].

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

Ordered that the branch of the motion which is, in effect, for clarification of the decision and order of this Court dated February 2, 2004, is granted, the motion is otherwise denied, the decision and order of this Court dated February 2, 2004, in the above-entitled case is recalled and vacated, and the following decision and order is substituted therefor:

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals from an order of the Supreme Court, Kings County (Schneier, J.), dated October 17, 2002, which denied the petition and dismissed the proceeding.

Ordered that the order is reversed, on the law, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for further proceedings consistent [*2]herewith; and it is further,

Ordered that the petitioner shall serve a supplemental notice of petition (see CPLR 305 [a]) and amended petition (see CPLR 3025 [b]) upon the Superintendent of the New York State Insurance Department, in his capacity as Administrator of the New York Public Motor Vehicle Liability Security Fund, joining him as an additional respondent to the proceeding within 30 days after service upon him of a copy of this decision and order.

In July 1998 the respondent, Neville Hamilton, allegedly was injured in a motor vehicle accident involving the proposed additional respondent Jean R. Lazard. At the time, Hamilton was insured by the petitioner, Eagle Insurance Company (hereinafter Eagle). Hamilton’s policy with Eagle provided compulsory uninsured motorist coverage (hereinafter UM coverage) (see Insurance Law § 3420 [f] [1]). However, Hamilton did not purchase supplemental uninsured motorist coverage (hereinafter SUM coverage) from Eagle (see Insurance Law § 3420 [f] [2]; 11 NYCRR 60-2.3). Lazard was insured by the proposed additional respondent Reliance National Indemnity Company (hereinafter Reliance), a Pennsylvania company authorized to sell insurance in New York. After commencing an action against Lazard, Hamilton learned that Lazard’s insurer, Reliance, had been declared insolvent, and its New York assets were in receivership and were being liquidated by the Superintendent of the New York State Insurance Department (hereinafter the Superintendent) pursuant to Insurance Law article 74. Accordingly, Hamilton sent a letter to Reliance via the Superintendent requesting that it appear in the action on behalf of Lazard. In response, Hamilton was sent a copy of a letter sent to Lazard by the Superintendent stating that, although Hamilton’s claim against Lazard was “covered by the New York Public Motor Vehicle Liability Security Fund [hereinafter the PMV Fund] . . . [a]t this time, the PMV Fund is unable to provide either a defense to or indemnification of this claim insofar as the PMV Fund is financially strained.” Thereafter, Hamilton made a demand upon his own insurance company, Eagle, to arbitrate a claim for uninsured motorist benefits pursuant to his policy with Eagle.

Eagle commenced this proceeding for a permanent stay of arbitration, arguing that the record revealed that Lazard’s vehicle was not uninsured at the time of the accident, but rather, was insured by Reliance. In opposition, Hamilton argued that Reliance’s insolvency triggered UM benefits, relying on Insurance Law § 3420 (f) (2) and Regulation 35-D, specifically 11 NYCRR 60-2.3 (f). In reply, Eagle argued that Insurance Law § 3420 (f) (2) and Regulation 35-D were not applicable, as they applied to SUM coverage only, which Hamilton did not purchase. Rather, Eagle asserted, the UM coverage provided to Hamilton was governed by Insurance Law § 3420 (f) (1), which was triggered, inter alia, when “the insurer disclaims liability or denies coverage.” Here, Eagle argued, Reliance neither disclaimed liability nor denied coverage, but rather was insolvent, which did not trigger UM coverage. The Supreme Court, finding that the Lazard vehicle qualified as an uninsured vehicle for purposes of Insurance Law § 3420 (f) (1), denied a stay of arbitration. We reverse and remit the matter for further proceedings.

The issues raised on this appeal implicate the interplay among various statutes, regulations, and case law related to UM coverage. Insurance Law § 3420 (f) (1) mandates that all policies issued or delivered in this state insuring against loss for bodily injury or death arising from a motor vehicle accident must contain a provision providing for UM coverage. Such compulsory UM coverage is triggered, inter alia, where an insured is entitled to recover damages from an insured motor vehicle but “the insurer disclaims liability or denies coverage.” Insurance Law § 3420 (f) (2) requires an insurer to provide, at the option of the insured, the right to purchase supplementary SUM [*3]coverage. The regulations promulgated by the Superintendent concerning SUM coverage, generally referred to as Regulation 35-D, provide that such coverage is triggered, inter alia, by the “insolvency” of the alleged tortfeasor’s insurer (see 11 NYCRR 60.23 [f] [c] [3] [iii]). Since 1958 the Legislature has also provided for a fund, currently known as the PMV Fund, pursuant to article 76 of the Insurance Law. The PMV Fund provides coverage for, inter alia, allowed claims of injured parties that remain unpaid, in whole or in part, due to the insolvency of an insurer (see Insurance Law § 7604). A claim to the fund is made with the Superintendent pursuant to article 74 of the Insurance Law (see Insurance Law art 74; see also Insurance Law §§ 7607, 7608).

In 1977, before the promulgation of Regulation 35-D (which concerns SUM coverage), the Court of Appeals decided State-Wide Ins. Co. v Curry (43 NY2d 298 [1977]). In State-Wide, the appellant Virginia Curry was injured in a motor vehicle accident. After the accident, the insurer of the alleged tortfeasor’s vehicle was declared insolvent and placed in liquidation. Curry proceeded against her own insurer, State-Wide Insurance Co. (hereinafter State-Wide), seeking UM coverage. State-Wide argued that Curry’s remedy was against the PMV Fund. Curry argued that the insolvency of the tortfeasor’s insurer provided her with option of pursuing either the PMV Fund or State-Wide. The Court of Appeals held that, on the facts presented, the insolvency of the alleged tortfeasor’s insurer did not provide Curry with such an option. Rather, the Court held, the statutory coverage mandated by then Insurance Law § 167 (2-a) (currently Insurance Law § 3420 [f] [1]—i.e., UM coverage) “presupposes that no other liability coverage exists to compensate innocent victims of motor vehicle accidents” (id. at 302). In the case before it, the Court noted, there was such other coverage, i.e., the PMV Fund. Thus, the Court held, “there [was] no need to protect such injured person under the Indemnification Endorsement [UM coverage], since compensation is otherwise available” (id.; see also Matter of Union Indem. Ins. Co. of N.Y., 92 NY2d 107, 113 [1998]). Furthermore, the State-Wide Court noted, the language of then-subdivision 2-a of Insurance Law § 167 [currently Insurance Law § 3420 (f) (1)] was triggered “where the insurer disclaims liability or denies coverage” (State Wide Ins. v Curry, supra at 303). The Court held that the insolvent insurer fit “neither of these categories” (id. at 303). Rather, while that insurer had become insolvent after the accident, “the insurance policy itself survived, and the obligations owed its insured were assumed by the [PMV Fund]” (id. at 303). Thus, the Court concluded, the alleged tortfeasor’s vehicle “was neither ‘an uninsured motor vehicle’ nor ‘an insured vehicle where the insurer disclaim[ed] liability or denie[d] coverage’ within the meaning of subdivision 2-a of section 167 of the Insurance Law [currently Insurance Law § 3420 (f) (1)]” (id. at 303).

The Court of Appeals found its conclusion bolstered by the legislative history of Insurance Law § 167, the purpose of which was to ” ‘close the gaps . . . with respect to assuring payment of compensation to innocent victims of motor vehicle accidents’ ” (id. at 303, quoting NY Legis Ann, 1958, p 299). The Court stated that “surely the Legislature did not intend to provide another remedy for those insured by insolvent domestic insurers, where, due to [the PMV Fund], no gap had existed as to assuring compensation to such victims for many years” (id.). Finally, the State-Wide Court noted, the Appellate Divisions, First and Third Departments, when confronted with similar issues, had arrived at a different interpretation of Insurance Law § 167. In Matter of Taub (Motor Veh. Acc. Indem. Corp.) (31 AD2d 378, 381 [1969]), the Appellate Division, First Department, held that the insolvency of the alleged tortfeasor’s insurer after the underlying accident “was tantamount to a disclaimer of liability, or denial of coverage.” In Matter of Travis (General Acc. Group) (31 AD2d 20 [1968]), the Appellate Division, Third Department, reached a “like result” when the alleged tortfeasor’s insurer was declared insolvent before the accident. The State-Wide Court held that while both cases “expressed an overly broad interpretation of subdivision 2-a of section 167,” both were correctly decided on [*4]their facts because in each case the alleged tortfeasor’s insurer had not been licensed to do business in New York and, therefore, had not contributed to the PMV Fund (State Wide Ins. v Curry, supra at 304). Thus, payment from the PMV Fund was not available.

The distinction to be drawn between UM coverage and SUM coverage, in light of the language of the various statutes and regulations, and implied by the decision in State-Wide, was made manifest in a decision of this Court after the enactment of Regulation 35-D, dealing with SUM coverage. In American Mfrs. Mut. Ins. Co. v Morgan (296 AD2d 491 [2002]), the alleged tortfeasor’s insurer had been declared insolvent after an underlying motor vehicle accident and was in liquidation. The insured, Karen Morgan, who had purchased SUM coverage from her own insurer, the petitioner American Manufacturers Mutual Insurance Company (hereinafter American Manufacturers), filed a claim for such coverage and demanded arbitration. American Manufacturers sought a permanent stay, arguing that because the alleged tortfeasor’s insurer had paid into the PMV Fund, Morgan’s recourse was against the fund. This Court held that, given the express language of Regulation 35-D (which expressly references insolvency), and the “greater breadth of SUM coverage,” Morgan was entitled to seek SUM coverage from American Manufacturers based on the insolvency of the alleged tortfeasor’s insurer, and need not pursue the PMV Fund (American Mfrs. Mut. Ins. Co. v Morgan, supra at 494; see Matter of Eagle Ins. Co. v St. Julian, 297 AD2d 737 [2002]).

Here, because Hamilton purchased UM coverage only from his insurer (Eagle), and the alleged tortfeasor’s now insolvent insurer (Reliance) paid into the PMV Fund, Hamilton’s recourse is not against Eagle for UM coverage, but against the PMV Fund (see State-Wide Ins. Co. v Curry, supra; Eagle Ins. Co. v St. Julian, supra; American Mfrs. Mut. Ins. Co. v Morgan, supra). However, this is not to say that under no circumstances will Hamilton be entitled to UM coverage from Eagle. Rather, resolution of this issue turns on a question not expressly answered by the analysis, supra, to wit: What is to occur if the Superintendent, as administrator of the PMV Fund, denies Hamilton recovery from the fund. That is, whether this would be a denial of coverage within the meaning of Insurance Law § 3420 (f) (1), thereby triggering Hamilton’s right to UM coverage from Eagle. Resolution of this question implicates the statutory scheme concerning the PMV Fund and its place in the highly regulated area of no-fault benefits. Whether this question need be reached turns on the threshold factual issue of whether coverage from the PMV Fund is being denied. The only evidence in the record concerning this issue—the letter from the Superintendent, carbon copied to Hamilton, stating that coverage from the PMV Fund was being denied “at this time” due to “financial strain,” is wholly insufficient. Given this threshold factual issue, and the potentially broad significance of resolution of the question of whether the denial of recovery from the PMV Fund is a denial of coverage within the meaning of Insurance Law § 3420 (f) (1), these matters are best determined in the first instance by the Supreme Court, on a more fully developed record and after joinder of the Superintendent. Ritter, J.P., Florio, S. Miller and Luciano, JJ., concur.

—[*1]

In an action to recover no-fault benefits, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Molia, J.), dated February 10, 2004, which granted the defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (5) and Insurance Law § 5106 (c).

Ordered that the order is affirmed, with costs.

The plaintiff contends that he was entitled to a trial de novo of his no-fault claim pursuant to Insurance Law § 5106 (c) because the amount in controversy was greater than $5,000. We disagree. The statute permits an insurer or a claimant to institute a court action to adjudicate the dispute de novo where the master arbitrator’s award is $5,000 or greater. Here, the master arbitrator made no monetary award and the statutory predicate for a de novo court adjudication was not satisfied (see General Acc. Fire & Life Ins. Co. v Avlonitis, 156 AD2d 424 [1989]; Harley v United Servs. Automobile Assn., 191 AD2d 768, 769 [1993]; see also Matter of Greenberg [Ryder Truck Rental], 70 NY2d 573 [1987]).

The plaintiff contends, in the alternative, that the statute is unconstitutional because the $5,000 threshold limits the ability of claimants to obtain de novo court adjudication while allowing insurance companies readier access to the judicial forum. We disagree. Insurance Law § 5106 (c) does not violate due process and equal protection because the classification it creates between claimants and insurance carriers is reasonably related to a legitimate state interest and has a rational basis (see Booth v Hartford Ins. Group, 531 F Supp 481 [1982]; Country-Wide Ins. Co. v Harnett, [*2]426 F Supp 1030 [1977]; see also City of New Orleans v Dukes, 427 US 297 [1976]). Krausman, J.P., Mastro, Rivera and Skelos, JJ., concur.

—[*1]

In an action, inter alia, to recover unpaid no-fault benefits, the defendant appeals from an order of the Supreme Court, Nassau County (Alpert, J.), dated October 26, 2004, which denied its motion to vacate a judgment entered upon its default in appearing or answering.

Ordered that the order is reversed, on the law and as a matter of discretion, with costs, the motion is granted, the judgment is vacated, the matter is remitted to the Supreme Court, Nassau County, for further proceedings consistent herewith, and the defendant’s time to answer the complaint is extended until 20 days after service upon it of a copy of this decision and order.

The denial of the defendant’s motion to vacate the judgment entered upon its default in appearing or answering was an improvident exercise of discretion. The defendant insurer’s default was not attributable to the insurer’s mere delay in forwarding the complaint to counsel (cf. Campbell v Ghafoor, 8 AD3d 316 [2004]; O’Shea v Bittrolff, 302 AD2d 439 [2003]; Miles v Blue Label Trucking, 232 AD2d 382 [1996]), but was occasioned by an inexperienced claims adjuster’s reasonable belief that advising opposing counsel, both telephonically and in writing, that no-fault benefits had been exhausted, would suffice to end the matter. The claims adjuster’s letter included a copy of the denial of claim form issued to the plaintiff New York University Hospital Tisch Institute, as assignee of Ira Kalfus (hereinafter the plaintiff), and requested that the plaintiff’s counsel “withdraw your summonses regarding this matter and advise our office upon doing so.” [*2]

Under these circumstances, we find that the defendant demonstrated a reasonable excuse for the default (see Barajas v Toll Bros., 247 AD2d 242 [1998]). When coupled with the meritorious defense of exhaustion of benefits, the brief delay involved, and the complete lack of prejudice to the plaintiff, vacatur of the judgment entered upon the defendant’s default was warranted. This is consistent with the strong public policy favoring the determination of controversies on their merits (see Heskel’s W. 38th St. Corp. v Gotham Constr. Co. LLC, 14 AD3d 306 [2005]; Ray Realty Fulton, Inc. v Lee, 7 AD3d 772 [2004]). Santucci, J.P., Krausman, Mastro and Skelos, JJ., concur.

—[*1]

In an action to recover no-fault insurance medical payments, the plaintiffs, Mount Sinai Hospital, as assignee of Mendel Adolph, White Plains Hospital Center, as assignee of Shehan Guiragossian, and Wyckoff Heights Medical Center, as assignee of Juan Picardo, appeal from so much of an order of the Supreme Court, Nassau County (Feinman, J.), dated March 31, 2004, as denied their motion for summary judgment on the first and third causes of action in the complaint.

Ordered that the appeal by the plaintiff White Plains Hospital Center, as assignee of Shehan Guiragossian, is dismissed, without costs or disbursements, as that plaintiff is not aggrieved by the order; and it is further,

Ordered that the order is modified, on the law, by deleting the provision thereof denying that branch of the motion which was for summary judgment on the third cause of action asserted by Wyckoff Heights Medical Center, as assignee of Juan Picardo, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff Mount Sinai Hospital, as assignee of Mendel Adolph (hereinafter Mount Sinai) demonstrated its entitlement to judgment as a matter of law on the first cause of action by [*2]establishing that it submitted the requisite documents to recover payment for medical services, but the defendant Zurich American Insurance Company (hereinafter Zurich) neither paid nor denied the claims (see New York & Presbyt. Hosp. v Allstate Ins. Co., 12 AD3d 579 [2004]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]). However, an insurer is not required to pay a claim where the policy limits have been exhausted (see Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533, 534 [2004]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., supra). In opposition to Mount Sinai’s motion, Zurich demonstrated that there were issues of fact as to whether it exhausted the coverage limits of the policy by other “no-fault” payments and whether such payments were in compliance with 11 NYCRR 65.15 (n). Accordingly, that branch of the motion which was for summary judgment on the first cause of action asserted by Mount Sinai was properly denied.

The plaintiff Wyckoff Heights Medical Center, as assignee of Juan Picardo (hereinafter Wyckoff Heights) established its entitlement to judgment as a matter of law on the third cause of action. Therefore, the Supreme Court erred in denying summary judgment to Wyckoff Heights.

Mount Sinai’s remaining contentions are without merit. Schmidt, J.P., Santucci, Crane and Skelos, JJ., concur.

—[*1]

Order of the Appellate Term of the State of New York, First Department, entered on or about June 18, 2003, which, in an action by a health provider against a no-fault insurer to recover on an assigned no-fault claim, reversed an order, Civil Court, Bronx County (Wilma Guzman, J.), entered October 24, 2001, denying plaintiff’s motion for summary judgment, and, inter alia, granted the motion, unanimously affirmed, without costs.

Plaintiff submitted a claim to defendant for orthopedic services it provided to its assignor from November 4, 1998 to February 8, 1999. More than 30 days later, and after plaintiff had commenced the instant action alleging that defendant had neither paid nor denied the claim within 30 days as required by Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3), defendant rejected a portion of the claim, explaining that it had previously denied all further orthopedic benefits effective January 26, 1999, and that it was accordingly denying the claim insofar as it sought benefits for services provided after that date. It appears that on January 19, 1999, defendant had sent plaintiff’s assignor a denial of claim form advising that all further orthopedic benefits would be denied effective January 26, 1999, based on an independent medical examination showing no further need for treatment. Appellate Term rejected defendant’s argument that the January 19, 1999 denial of claim form it had sent to plaintiff’s assignor is imputable to plaintiff (citing Atlantis Med. v Liberty Mut. Ins. Co., 2002 NY Slip Op 40043U [Dist Ct, Nassau County 2002], and held that defendant’s failure to respond to plaintiff’s claim within the statutory 30-day time limit precluded defendant from defending against the claim on the ground that any treatment after January 26, 1999 was unnecessary (citing Presbyterian Hosp. v Maryland Cas. Co., 90 NY2d 274 [1997]; Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195 [1997]; Country-Wide Ins. Co. v Zablozki, 257 AD2d 506 [1999], lv denied 93 NY2d 809 [1999]).

We hold that the No-Fault Law itself (Insurance Law art 51), and the regulations promulgated thereunder for settlement of claims (11 NYCRR 65.15), require that “When a provider of medical services [first] submits a claim as assignee of an insured, neither the statute nor the regulations contemplate the insurer simply sitting mute and failing to act upon the claim, silently and secretly relying upon an earlier [blanket] denial issued directly to the insured” (Atlantis Med., 2002 NY Slip Op 40043U at *9; see also Aurora Chiropractic, P.C. v Farm & Cas. Ins. [*2]Co. of Conn., 4 Misc 3d 1026 [A], 2004 NY Slip Op 51066[U], *2-3 [2004]; compare Hospital for Joint Diseases v Allstate Ins. Co., 5 AD3d 441 [2d Dept 2004]). Concur—Mazzarelli, J.P., Saxe, Friedman, Sullivan and Williams, JJ. [See 196 Misc 2d 322.]

—[*1]

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, Mimose Henry appeals (1) from an order of the Supreme Court, Rockland County (Bergerman, J.), dated April 22, 2003, which granted the petition and permanently stayed the arbitration, and (2), as limited by her brief, from so much of an order of the same court dated October 7, 2003, as, upon reargument, adhered to the prior determination.

Ordered that the appeal from the order dated April 22, 2003, is dismissed, as that order was superseded by the order dated October 7, 2003, made upon reargument; and it is further,

Ordered that the order dated October 7, 2003, is affirmed insofar as appealed from; and it is further,

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

A claimant seeking uninsured motorist benefits is required to “give notice to his or her insurer within the time limit provided in the insurance policy or within a reasonable time under all the circumstances” as a condition precedent to the insurer’s liability (Matter of Allstate Ins. Co. v Kashkin, 130 AD2d 744, 745 [1987]; see Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 440 [1972]; Matter of Eagle Ins. Co. v Garcia, 280 AD2d 476, 477 [2001]; Matter of Nationwide Ins. Co. v Bietsch, 224 AD2d 623 [1996]). Absent a valid excuse, the failure to satisfy the notice requirement [*2]of an insurance policy vitiates coverage (see Matter of Eagle Ins. Co. v Garcia, supra; Matter of Nationwide Ins. Co. v Bietsch, supra; Matter of Allstate Ins. Co. v Kashkin, supra). Contrary to the claimant’s contention, the correspondence between her attorney and the petitioner insurance company, and her submission of an application for no-fault benefits, did not provide the insurance company with the requisite notice of her claim for uninsured motorist benefits (see Matter of Country-Wide Ins. Co. [Eun Kyu Park], 277 AD2d 175 [2000]; Matter of Nationwide Mut. Ins. Co. v Wexler, 276 AD2d 490 [2000]; Matter of Nationwide Ins. Co. v Bietsch, supra at 624). Moreover, the claimant did not offer a valid excuse for her failure to give the insurance company timely notice. Accordingly, the Supreme Court properly granted the petition to stay arbitration. H. Miller, J.P., Krausman, Goldstein and Skelos, JJ., concur.

—[*1]

Mugglin, J. Appeal from an order of the Supreme Court (Demarest, J.), entered January 22, 2004 in St. Lawrence County, which, inter alia, granted defendant’s cross motion for summary judgment dismissing the complaint.

On August 12, 2000, plaintiff suffered an injury to his right knee when he was struck by an automobile driven by defendant’s insured. Nine days later, on his application for no-fault benefits, plaintiff correctly reported that he was not employed, had lost no time from work and was not receiving unemployment insurance benefits. Plaintiff did report, however, that he had lost time looking for work. Plaintiff’s subsequent claim for lost wages was denied by defendant on December 15, 2000 and, in January 2001, plaintiff sued for the lost-wage claim.

In March 2001, plaintiff took an examination for entry into the State Police. He was notified in June 2001 that he had passed. Because plaintiff’s doctor was fearful that plaintiff could not pass the State Police physical exam, plaintiff sought deferment. When that was granted, plaintiff had his knee surgically repaired and, after a period of rehabilitation, passed the physical exam in April 2003 and entered the State Police Academy.

Asserting that his injury delayed his employment in the State Police and his expected earnings as a trooper exceeded the actual salary he earned during the period, plaintiff sought [*2]summary judgment for approximately $24,000 on his lost-wage claim. Defendant cross-moved for summary judgment dismissing the claim on the basis that it was too speculative. Supreme Court granted the cross motion and plaintiff appeals.

Plaintiff argues that Insurance Law § 5102 (a) (2) as supplemented by 11 NYCRR 65-3.16 (b) (3) mandates reversal. We disagree and affirm. Insurance Law § 5102 (a) (2) provides that an individual who makes a claim under the no-fault provision be compensated for “[l]oss of earnings from work which the person would have performed had he not been injured” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 458 [1980]). Moreover, 11 NYCRR 65-3.16 (b) (3), in interpreting the statute, states that the “[l]oss of earnings from work shall not necessarily be limited to the applicant’s level of earnings at the time of the accident, but may also include demonstrated future earnings reasonably projected.” However, it is clear that the intent of the Legislature is “to compensate the accident victim for the earnings he or she would have, in fact, realized” at the time of the accident (Kurcsics v Merchants Mut. Ins. Co., supra at 457).

It is our view that the language of both the statute and the regulation contemplates a degree of certainty in the calculation of lost wages and they apply to reimburse a claimant for wages actually lost from employment engaged in at the time of the accident and those lost wages from that employment can be increased if the claimant can demonstrate a reasonable projection that his or her future earnings from said employment will increase (see Herman v Government Empls. Ins. Co., 115 Misc 2d 146, 149 [1982]). Here, that degree of certainty is entirely lacking. Plaintiff’s entry into the State Police Academy and its deferral as a result of the knee injury could not have been reasonably contemplated by either party at the time of the accident, rendering his claim entirely speculative.

Crew III, J.P., Carpinello, Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed, with costs. [See 2 Misc 3d 945.]

—[*1]

Mercure, J.P. Appeal from an order of the Supreme Court (Reilly, Jr., J.), entered December 5, 2003 in Schenectady County, which granted petitioner’s application pursuant to CPLR 7503 to stay arbitration between the parties.

After allegedly sustaining injuries in a May 1998 automobile accident, respondent Geraldine Celebucki filed a claim for no-fault insurance benefits with petitioner in July 1998. Celebucki thereafter notified petitioner of her intent to file an additional claim for supplementary underinsured motorist (hereinafter SUM) coverage pursuant to the terms of her existing automobile insurance policy with petitioner. In February 2002, petitioner disclaimed coverage of the SUM claim on the ground that Celebucki had failed to notify it of her intent to seek such benefits until November 2001, approximately 3½ years after the date of the accident. Contending that petitioner had actually received such notice in August 1998, respondents filed a demand for arbitration. Supreme Court granted petitioner’s subsequent CPLR 7503 petition to permanently stay arbitration, prompting this appeal.

We affirm. In our view, Supreme Court properly held that Celebucki failed to provide petitioner with notice of her SUM claim “[a]s soon as practicable,” a requirement of her SUM [*2]policy (see generally Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487 [1999]). Although respondents contend that such notice was provided by letter from respondents’ counsel in August 1998, petitioner presented the affidavits of a claims representative who stated that no such letter was located in Celebucki’s file. Indeed, there is no evidence in the record, apart from the unsubstantiated assertion of respondents’ counsel that he “did cause to execute and forward” said letter, to validate respondents’ claim. Notably, respondents failed to offer any proof of regular mailing procedures and office practices “geared to ensure the proper addressing or mailing of this letter,” thus entitling them to a rebuttable presumption of receipt by petitioner (Matter of Phoenix Ins. Co. v Tasch, 306 AD2d 288, 288 [2003]; see Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830 [1978]). Accordingly, we agree with Supreme Court that timely written notice of the SUM claim was never provided and arbitration was properly stayed.

Spain, Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed, without costs.

—[*1]In an action to recover no-fault benefits, the plaintiffs appeal from so much of an order of the Supreme Court, Nassau County (Davis, J.), dated February 10, 2004, as granted the defendant’s motion to vacate a judgment of the same court entered July 11, 2003, upon its failure to appear or answer the complaint.

Ordered that the order is reversed insofar as appealed from, on the law and as a matter of discretion, with costs, the motion is denied, and the judgment is reinstated.

It is well settled that a defendant seeking to vacate a default in appearing or answering a complaint must demonstrate both a reasonable excuse for the default and the existence of a meritorious defense (see CPLR 5015 [a] [1]; Glibbery v Cosenza & Assoc., 4 AD3d 393 [2004]; Kaplinsky v Mazor, 307 AD2d 916 [2003]). The Supreme Court improvidently exercised its discretion in granting the defendant’s motion to vacate the default judgment since the defendant failed to demonstrate a reasonable excuse for its default. Ritter, J.P., H. Miller, Schmidt, Crane and Skelos, JJ., concur.