—[*1]

In an action, inter alia, for a judgment declaring the parties’ rights under a certain insurance policy, the plaintiffs appeal from an order of the Supreme Court, Queens County (Polizzi, J.), dated July 8, 2003, which granted the defendant’s motion for summary judgment and denied those branches of their cross motion which were for summary judgment, or in the alternative, to reschedule the examination under oath of the plaintiff Tracy Dwight Park.

Ordered that the order is reversed, on the law, with costs, the motion is denied, the cross motion is granted, the defendant is directed to reschedule the examination under oath of the plaintiff Tracy Dwight Park, and the matter is remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that the defendant’s denial of no-fault insurance benefits, in effect, on the ground that the plaintiffs engaged in a pattern of unreasonable and willful noncooperation was improper.

The plaintiff Tracy Dwight Park (hereinafter the injured plaintiff) allegedly was injured in a motor vehicle accident while operating a vehicle owned by the plaintiff Catherine Park, his spouse, and insured by the defendant. The plaintiffs submitted a claim for no-fault benefits to the defendant. The defendant sought to examine the injured plaintiff under oath in accordance with the terms of the insurance policy, but he refused to submit to the examination unless his wife was allowed to be present. In response, the defendant denied the plaintiffs’ claim for no-fault benefits [*2]on the ground that the plaintiffs failed to cooperate with its investigation. The plaintiffs commenced this action, inter alia, for a judgment declaring the parties’ rights under the insurance policy. The Supreme Court granted the defendant’s motion for summary judgment and denied those branches of the plaintiffs’ cross motion which were for summary judgment, or in the alternative, to reschedule the examination under oath of the injured plaintiff. The Supreme Court concluded that the plaintiffs’ failure to cooperate with the insurer constituted a material breach of the policy. We disagree.

The Supreme Court correctly concluded that the plaintiffs had “no right to be present at each others’ examinations since the examinations were requested pursuant to an insurance policy and not as part of a legal action” (Matter of Allstate Ins. Co. v Moshevev, 291 AD2d 401, 402 [2002]; see Dyno-Bite, Inc. v Travelers Cos., 80 AD2d 471 [1981]). Nevertheless, we conclude that the defendant failed to sustain its heavy burden of demonstrating that the plaintiffs engaged in a pattern of unreasonable and willful noncooperation so as to warrant denial of the claim (see Laiosa v Republic Ins. Co., 217 AD2d 605 [1995]; Allstate Ins. Co. v Durand, 286 AD2d 407 [2001]). Accordingly, the Supreme Court should have directed the insurance company to reschedule the injured plaintiff’s examination under oath.

Since this is a declaratory judgment action, the matter must be remitted to the Supreme Court, Queens County, for the entry of a judgment declaring that the defendant’s denial of no-fault insurance benefits, in effect, on the ground that the plaintiffs engaged in a pattern of unreasonable and willful noncooperation was improper (see Lanza v Wagner, 11 NY2d 317, 334 [1962], appeal dismissed 371 US 74 [1962], cert denied 371 US 901 [1962]). S. Miller, J.P., Schmidt, Rivera and Spolzino, JJ., concur.

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In an action to recover no-fault medical payments, the defendant appeals from an order of the Supreme Court, Nassau County (O’Connell, J.), dated November 17, 2003, which granted the plaintiff’s motion for summary judgment on its first and second causes of action.

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

In its first cause of action, the plaintiff alleged that it submitted a “no-fault” claim as assignee of Adrian Leaf and, in effect, that the defendant failed to issue a denial of the claim within 30 days of its receipt thereof. In its second cause of action, the plaintiff alleged that it submitted a “no-fault” claim as assignee of Noemi Gomez and, in effect, that the defendant failed to issue a denial of the claim within 30 days of its receipt thereof. The plaintiff asserts that the defendant is liable for the full amount of each claim on the ground that it failed to timely deny the claims.

With respect to the plaintiff’s first cause of action, the plaintiff demonstrated its entitlement to judgment as a matter of law by establishing that it “submitted the requisite documents for payment, but [the defendant] neither paid nor denied the claims, nor requested verification within the requisite periods” (New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]). In opposition thereto, the defendant demonstrated that there were issues of fact as to whether it [*2]partially 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). The defendant’s failure to issue a denial of the claim within 30 days does not “preclude a defense that the coverage limits of the subject policy have been exhausted” (Presbyterian Hosp. in City of N.Y. v General Acc. Ins. Co. of Am., 229 AD2d 479, 480 [1996]; see Presbyterian Hosp. of N.Y. v Liberty Mut. Ins. Co., 216 AD2d 448 [1995]).

With respect to the plaintiff’s second cause of action to recover for services provided to Gomez, the defendant, in opposition to the plaintiff’s demonstration of its entitlement to summary judgment, submitted evidence that the disputed claim was the second of two successive claims for the same services, the first of which was properly denied. A failure to issue a timely written denial of the second of these two successive but identical claims would not warrant granting the plaintiff judgment as a matter of law (see Hospital for Joint Diseases v Allstate Ins. Co., 5 AD3d 441 [2004]). Ritter, J.P., Goldstein, Adams and Crane, JJ., concur.

—[*1]In an action to recover unpaid no-fault insurance benefits, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Pagones, J.), dated August 7, 2003, which denied his motion for summary judgment and granted the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order is modified, on the law, by deleting the provision thereof granting the cross motion and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed, with costs payable to the plaintiff, and the complaint is reinstated.

There are issues of fact which precluded the granting of the defendant’s cross motion for summary judgment dismissing the complaint (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]), including whether the plaintiff was intoxicated at the time of the accident within the meaning of the no-fault insurance law (see Insurance Law § 5103 [b] [2]; Vehicle and Traffic Law § 1192 [2], [3]), and whether his intoxication was a proximate cause of the accident (see Scahall v Unigard Ins. Co., 222 AD2d 1070 [1995]; North v Travelers Ins. Co., 218 AD2d 901, 902 [1995]; Cernik v Sentry Ins., 131 AD2d 952 [1987]).

The plaintiff’s remaining contentions are without merit. Prudenti, P.J., Ritter, H. Miller and Spolzino, JJ., concur.

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Appeal from an order of the Supreme Court, Erie County (Donna M. Siwek, J.), entered June 17, 2003. The order granted the petition to vacate an arbitration award and denied respondent’s petition to confirm the award.

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

Memorandum: Supreme Court properly granted the petition seeking to vacate the arbitration award directing petitioner to pay additional personal injury protection (APIP) benefits to respondent. Respondent was injured in an automobile accident on February 20, 1999 while operating a vehicle that belonged to a relative. That vehicle was insured by State Farm Insurance Company (State Farm), and respondent received no-fault insurance benefits from State Farm. On February 3, 2000, respondent, through an attorney whom she had recently retained, gave petitioner written notice of her claim for APIP benefits. Petitioner denied the claim because respondent failed to give notice within 90 days of the accident as required by respondent’s policy with petitioner. The parties proceeded to arbitration and the arbitrator determined that it was impossible for respondent to have given notice within 90 days because she was unaware of the seriousness of her condition until February 2000. That determination was upheld by the master arbitrator. Petitioner sought to have the award vacated and respondent petitioned for confirmation of the award.

As a preliminary matter, the court properly determined that it could not disturb the award on the ground that it was based upon an error of law, as urged by petitioner, but only on the ground that it lacked a rational basis (see Matter of Allen [New York State], 53 NY2d 694, 696 [1981]; see also CPLR 7511 [b] [1]). The policy required respondent to give notice “as soon as reasonably practicable, but in no event more than 90 days after the date of the accident, unless the eligible injured person submits written proof that it was impossible to comply with such time limitation due to specific circumstances beyond such person’s control.” We note that this notice requirement is more stringent than notice requirements for supplemental underinsured motorist benefits, which typically require notice as soon as practicable (see e.g. Medina v State Farm Mut. [*2]Auto. Ins. Co., 303 AD2d 987, 988 [2003]; see generally Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487, 494-495 [1999]). Even assuming, arguendo, that respondent was not aware of the seriousness of her injuries until February 2000, the record establishes that respondent sought medical treatment for her injuries two days after the accident and, because her symptoms continued to worsen, she was referred to a specialist, who, among other things, ordered an MRI within the 90-day period. That physician thereafter referred respondent to a neurosurgeon who ultimately advised respondent that surgery was required. Thus, we conclude that there is no rational basis for the arbitrator’s finding that it was impossible for respondent to provide notice to petitioner within the 90-day period because of circumstances beyond her control, as required by the policy.

All concur except Pine, J.P., and Lawton, J., who dissent and vote to reverse in accordance with the following memorandum.

Pine, J.P., and Lawton, J. (dissenting). We respectfully dissent. We concur with the majority that Supreme Court properly determined that it could not disturb the arbitrator’s award on the ground that it was based upon an error of law. We differ only with the majority’s holding that “there is no rational basis for the arbitrator’s finding that it was impossible for respondent to provide notice to petitioner within the 90-day period.” Because the finding of the arbitrator was based upon the weighing of factual matters and the record supports that determination, the court is powerless to substitute its determination for that of the arbitrator (see Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, 83 [2003]; Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 326 [1999]; Matter of Singleton [Fireman’s Fund Ins. Co.], 247 AD2d 868 [1998]). We would therefore reverse the order, deny petitioner’s petition, grant respondent’s petition and confirm the arbitrator’s award. Present—Pine, J.P., Scudder, Kehoe, Martoche and Lawton, JJ.

—[*1]Appeal from an order of the Supreme Court, Erie County (Donna M. Siwek, J.), entered May 14, 2003. The order granted the petition for a permanent stay of arbitration.

It is hereby ordered that the order so appealed from be and the same hereby is affirmed without costs for reasons stated in decision at Supreme Court.

All concur except Gorski, J., who dissents and votes to reverse in accordance with the following memorandum.

Gorski, J. (dissenting). I respectfully disagree with the position taken by the majority. I conclude that it was error to grant the petition to stay arbitration of this insurance dispute.

In its decision, Supreme Court acknowledged that, on January 3, 2002, respondent, a pedestrian, was struck by an unidentified car driven by an unidentified driver and sustained personal injuries. The court also acknowledged that petitioner issued a motor vehicle liability policy with a supplementary uninsured motorists (SUM) endorsement to respondent that was in effect on January 3, 2002. The court concluded that respondent’s November 6, 2002 notice to petitioner that respondent intended to seek SUM benefits under his policy was untimely.

It is apparent from the record, however, that, on January 10, 2002, just one week after the accident, respondent gave a recorded statement to an independent insurance adjusting company at petitioner’s request. That recorded statement was reduced to a written transcript and signed by respondent on January 21, 2002. It indicated that the vehicle that struck him could not be identified because it left the scene. The statement also indicated that respondent did not see the vehicle that struck him and could not identify the make or model of the vehicle because he was struck from behind. The statement further set forth the extent and nature of the injuries suffered by respondent. It is undisputed that respondent timely submitted a claim for no-fault benefits to petitioner.

By letter dated November 6, 2002, respondent’s attorney placed petitioner on notice of a potential SUM claim. On November 19, petitioner denied SUM coverage on the ground of late [*2]notice. On December 12, petitioner received a demand for arbitration, and subsequently brought the instant petition to stay the arbitration. As noted above, the court granted the petition and permanently stayed the arbitration, holding that respondent failed to timely notify petitioner of his claim for SUM benefits under his policy. The court determined that respondent did not give notice of his SUM claim “as soon as practicable,” a condition of SUM coverage set forth in the policy.

Respondent, who suffered a fractured arm that required surgery, received no-fault benefits from petitioner. He could only have received those benefits pursuant to Insurance Law § 5103 (a) (2), which requires insurers to provide coverage to their policyholders “for loss arising out of the use or operation of . . . an uninsured motor vehicle.”

I therefore believe that the requirement that respondent provide his insurer with notice of his claim “as soon as practicable” was met by the recorded statement given to the insurer one week after the accident, fully detailing the claim. “Construing the notice liberally in [respondent’s] favor, [respondent] provided [his] insurer with sufficient notice of a claim for uninsured motorist coverage” (Matter of Merchants Mut. Ins. Co. v Falisi, 99 NY2d 568, 569 [2003], rearg denied 100 NY2d 535 [2003]). I believe that it is “inconsistent and inequitable” for petitioner to contend that it did not have timely notice of respondent’s claim for SUM benefits after petitioner took a recorded, signed statement of respondent 10 months earlier containing all of the essential elements of such claim (Matter of New York Cent. Mut. Fire Ins. Co. [Guarino], 11 AD3d 909, 910 [2004]).

I would therefore reverse the order and deny the petition. Present—Pigott, Jr., P.J., Gorski, Martoche and Hayes, JJ.

—[*1]

Order, Supreme Court, Bronx County (Janice L. Bowman, J.), entered September 18, 2003, which, in an action to recover on 68 claims for no-fault insurance benefits assigned to plaintiff by 68 different assignors, granted defendant’s motion to sever the claim of each assignor into a separate action, unanimously affirmed, without costs.

The IAS court properly exercised its discretion under CPLR 603 in granting defendant’s motion to sever plaintiff’s 68 assigned claims for no-fault insurance benefits into separate actions. It is undisputed that the claims arise from 68 different accidents, and have been assigned to plaintiff, a vendor of medical services, by 68 different assignors. Even if it is assumed that the insurance policies of the 68 assignors are identical in all relevant respects—a matter addressed neither in the complaint nor in plaintiff’s papers opposing the motion—each claim will raise unique legal and factual issues. In this regard, we note that defendant’s answer places at issue, inter alia, the validity of the assignments, the necessity and reasonableness of plaintiff’s services in light of each assignor’s medical condition, defendant’s receipt of bills from plaintiff, and the sufficiency of the no-fault forms that have been submitted. The viability of these defenses will depend, in the case of each assignor’s claim, on the particular facts relating to that claim. At the same time, the claims are likely to raise few, if any, common issues of law or fact, even if the assignors’ insurance policies are identical. That all of the claims are for services provided by the same vendor, and are being asserted against the same insurance company, does not change the fact that individual issues are likely to predominate in the resolution of each claim.

Under the circumstances, to try all 68 claims together would be unwieldy and would create a substantial risk of confusing the trier of fact. Accordingly, the interests of convenience and avoidance of prejudice are best served by severing the claims (see Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp., 291 AD2d 536 [2002]; Bender v Underwood, 93 AD2d 747, 748 [1983]; Reid v Haher, 88 AD2d 873, 873-874 [1982]; Schneph v New York Times Co., 21 AD2d 599, 600-601 [1964]).

We note that our decision is consistent with a recent federal decision in a remarkably similar case (Boston Post Rd. Med. Imaging, P.C. v Allstate Ins. Co., 2004 WL 1586429, 2004 US Dist LEXIS 13243 [US Dist [*2]Ct, SD NY, July 15, 2004]). The plaintiff in Boston Post Road was a medical services provider that sued the same insurance company on no-fault claims arising from 59 different accidents, which had been assigned to the plaintiff by 59 different patients. In granting the insurance company’s motion to sever the claims, the Boston Post Road court stated, among other things, that the claims “arise out of distinct automobile accidents which led to different injuries to different individuals who underwent distinct medical services, payment for which was denied for varying reasons” (2004 WL at *1, 2004 US Dist LEXIS at *5). The court further noted that “[e]ven if the assignors’ insurance contracts are identical, the legal and factual issues involved in these claims are not,” since the defendant’s “answer pleaded different defenses that will apply to some claims and not to others,” meaning that “different provisions of the policies will be relevant to different claims” (2004 WL at *2, 2004 US Dist LEXIS at *5-6). These observations are equally applicable here.

Plaintiff’s reliance on the Second Department’s decision in Hempstead Gen. Hosp. v Liberty Mut. Ins. Co. (134 AD2d 569 [1987]) is unavailing. While Hempstead held that, under the particular circumstances of that case, Supreme Court had acted within its discretion in denying a motion to sever 29 assigned claims, the decision does not stand for the proposition that the granting of such a severance motion—in a case involving more than twice as many assigned claims—is an abuse of judicial discretion warranting reversal on appeal. In any event, Hempstead must be read in light of the Second Department’s much more recent decision in Mount Sinai Hosp. v Motor Veh. Acc. Indem. Corp. (supra). Mount Sinai held that Supreme Court “providently exercised its discretion” in granting a motion to sever five assigned no-fault claims that, inter alia, arose from “accidents on five different dates” and had “no relation or similarity to each other, other than the fact that the no-fault benefits were not paid” (291 AD2d at 536). Concur—Tom, J.P., Saxe, Williams, Friedman and Marlow, JJ.

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In an action to recover unpaid benefits due under the no-fault provisions of the Insurance Law, the plaintiff appeals from an order of the Supreme Court, Nassau County (Mahon, J.), dated December 11, 2003, which denied its motion for summary judgment.

Ordered that the order is affirmed, with costs.

“[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Moreover, the “[f]ailure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

The plaintiff did not sustain its prima facie burden in this case, as its submissions in support of its motion for summary judgment unequivocally demonstrated that it received payments on behalf of both of the insureds to whom it rendered medical treatment. Accordingly, the plaintiff’s papers failed to eliminate triable issues of fact regarding whether the claims at issue were the subjects of previous billings by the plaintiff which were resolved, and whether the current requests for no-fault payments constituted a resubmission of claims to which the rule of Insurance Law § 5106 (a) requiring payment or denial of claims within 30 days of receipt would not apply (see generally Hospital for Joint Diseases v Allstate Ins. Co., 5 AD3d 441 [2004]). In light of the foregoing, we [*2]need not examine the adequacy of the defendant’s papers in opposition to the motion. Santucci, J.P., Adams, Mastro and Spolzino, JJ., concur.

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In an action pursuant to Insurance Law § 5106, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Jonas, J.), dated December 15, 2003, as denied its motion for summary judgment on the complaint.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion is granted.

On March 11, 2003, and March 18, 2003, respectively, the plaintiff submitted two claims to the defendant to recover no-fault medical payments. On or about April 14, 2003, the defendant responded with a standard denial of claim which failed, inter alia, to supply the information listed in items 23 through 30 of the prescribed form, including the name of the health services provider, the date and amount of the claims being denied, and the date it received those claims. Subsequent correspondence dated June 13, 2003, from the defendant’s claim representative to the plaintiff supplied most of the previously-omitted information. The plaintiff then commenced this action against the defendant seeking payment of both claims, and moved for summary judgment on the ground that the April 14, 2003, denial of claim was fatally defective. The Supreme Court denied the motion and the plaintiff appeals.

Pursuant to 11 NYCRR 65-3.8 (c), the defendant was required either to pay or deny [*2]the plaintiff’s claims “[w]ithin 30 calendar days after proof of claim [was] received.” A proper denial of claim must include the information called for in the prescribed denial of claim form (see 11 NYCRR 65-3.4 [c] [11]) and must “promptly apprise the claimant with a high degree of specificity of the ground or grounds on which the disclaimer is predicated” (General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 [1979]; accord Halali v Evanston Ins. Co., 8 AD3d 431 [2004]; Hereford Ins. Co. v Mohammod, 7 AD3d 490 [2004]). “An insurer which fails to properly deny a claim within 30 days as required by these statutory provisions may be precluded from interposing a defense to the plaintiff’s lawsuit” (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 16 [1999]; see e.g. Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 283 [1997] [hereinafter Presbyterian I]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584 [2002]; New York & Presbyt. Hosp. v Empire Ins. Co., 286 AD2d 322 [2001]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 226 AD2d 613 [1996] [hereinafter Presbyterian II]). Moreover, “[a] timely denial alone does not avoid preclusion where said denial is factually insufficient, conclusory, vague or otherwise involves a defense which has no merit as a matter of law” (Amaze Med. Supply v Allstate Ins. Co., 3 Misc 3d 43, 44 [2004]).

Applying these principles, we find that the defendant’s April 14, 2003, denial of claim, while timely, was nonetheless fatally defective in that it failed to include a number of basic items called for in the prescribed form (see 11 NYCRR 65-3.4 [c] [11]; Presbyterian II, supra; Amaze Med. Supply v Allstate Ins. Co., supra). The defendant’s contention that it supplied the missing information on June 13, 2003, is without merit, as the defective claim form could not be corrected, nunc pro tunc, through information supplied after the regulatory 30-day period expired. Indeed, the statutory goal of ensuring the prompt payment or denial of claims would be materially frustrated if insurers were permitted to file timely but factually defective denial of claim forms, to be supplemented only after the expiration of the 30-day period prescribed by 11 NYCRR 65-3.8. Under these circumstances, the remedy of preclusion was appropriate, and the plaintiff’s motion should have been granted (cf. Presbyterian I, supra at 283-284). Florio, J.P., Smith, Rivera and Fisher, JJ., concur.

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Appeal from an order of the Supreme Court, Niagara County (Amy J. Fricano, J.), entered May 7, 2003. The order granted the application of petitioner for a permanent stay of arbitration.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law with costs and the application is denied.

Memorandum: Petitioner commenced this proceeding pursuant to CPLR article 75, seeking a permanent stay of arbitration of respondents’ claim for supplementary uninsured motorist (SUM) benefits based on the failure of respondents to provide the requisite written notice of their claim “[a]s soon as practicable,” in accordance with the automobile policy issued by petitioner to respondents. We previously reversed an order of Supreme Court (Joslin, J.) referring petitioner’s application for a stay of arbitration to an arbitrator, and we remitted the matter to Supreme Court for a hearing to determine whether respondents provided timely notice (Matter of New York Cent. Mut. Fire Ins. Co. [Guarino], 283 AD2d 982 [2001]). Respondents appeal from an order of Supreme Court (Fricano, J.) that, following the hearing, granted petitioner’s application for a permanent stay of arbitration based on respondents’ failure to provide timely notice. We reverse.

Respondent Sue Guarino (claimant) was injured in a rear-end motor vehicle accident on March 8, 1997. Although claimant immediately consulted with various medical providers for treatment of her back and neck injuries, all indications at the time were that claimant had not sustained a serious injury as defined by Insurance Law § 5102 (d). A report of an MRI performed in October 1997 recited that claimant had a “minimal right C5-6 disc bulge causing no apparent compromise” to the nerve and that claimant’s cervical spine was “otherwise normal.” Moreover, according to the report of a neurologist who performed an independent medical evaluation (IME) of claimant on March 17, 1998 on behalf of petitioner, claimant did not sustain a herniated disc in her neck or a cervical radiculopathy as a result of the accident. Instead, the IME physician concluded that claimant had sustained only cervical and lumbar strains, which are “soft tissue injuries [that] would be expected to heal in a matter of weeks to months,” and in any event the IME physician could not “clearly relate her ongoing discomforts to the motor vehicle [*2]accident.” On the basis of that IME report, petitioner in March 1998 denied claimant’s application for no-fault benefits. We note that it is both inconsistent and inequitable, in light of that denial of no-fault benefits, for petitioner now to contend that claimant was then on notice that she had a viable claim for SUM benefits.

The record establishes that it was not until mid-July 1998, at the earliest, that claimant was on notice that she had sustained a serious injury as a result of the accident. At that time, claimant received the report of her orthopedic surgeon, who indicated that the October 1997 MRI might have been misread and might in fact show a disc herniation at C5-6. Claimant was referred for another MRI that, according to a second report of the surgeon issued one month later, showed “a right-sided paracentral herniation at C5-6 with extrusion” as well as a “bulging of the annulus fibrosis at L5-S1 . . . [that] may be due to an annular tear.” Within six weeks of the issuance of that second report, respondents gave petitioner written notice of the SUM claim.

Based on the foregoing, we conclude that the court erred in determining that respondents did not give timely notice of the claim and in granting petitioner’s application to stay arbitration on that ground. We conclude that claimant acted with due diligence in ascertaining the medical facts underlying her SUM claim, and that respondents established that the overall 19-month delay in notifying petitioner of the SUM claim was reasonable (see Medina v State Farm Mut. Auto. Ins. Co., 303 AD2d 987, 988-989 [2003]; Matter of Nationwide Ins. Co. [Bellreng], 288 AD2d 925 [2001]; Matter of Allstate Ins. Co. [Earl], 284 AD2d 1002, 1004 [2001]; Matter of Nationwide Ins. Enter. [Leavy], 268 AD2d 661, 662-663 [2000]; see also Matter of Travelers Ins. Co. [DeLosh], 249 AD2d 924, 925-926 [1998]). Present—Green, J.P., Kehoe, Martoche and Hayes, JJ.

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In an action to recover no-fault medical payments, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Cozzens, J.), dated October 1, 2003, which denied their motion for summary judgment.

Ordered that the order is affirmed, without costs or disbursements.

In support of their motion for summary judgment, the plaintiffs submitted evidentiary proof that the defendant insurance company had not responded to their February 19, 2003, and January 15, 2003, claims for no-fault medical benefits within 30 days as required by Insurance Law § 5106 (a) and 11 NYCRR 65.15 (g) (3). In opposition to the motion, the defendant submitted documentary evidence and an affidavit of an employee asserting that the same claims had originally been billed over one year earlier and that timely denial of claim forms had been mailed to the plaintiffs at that time.

The evidence submitted by the plaintiffs satisfied their burden of establishing a prima facie entitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). However, the defendant submitted admissible evidence in opposition to the motion, which raised triable issues of fact as to the dates on which the plaintiffs mailed the no-fault claims to the defendant (see New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 585 [2002]) and whether the defendant properly denied those claims (see Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001]). Accordingly, the Supreme Court correctly denied the motion for summary judgment. Florio, J.P., S. Miller, Rivera and Lifson, JJ., concur.