—[*1]

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

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

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

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

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

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

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

—[*1]

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

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

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

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

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

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

—[*1]

In an action to recover no-fault medical payments, the plaintiff appeals from an order of the Supreme Court, Nassau County (Brandveen, J.), dated September 22, 2004, which denied its motion for summary judgment and granted the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court properly denied the plaintiff’s motion for summary judgment and correctly granted the defendant’s cross motion for summary judgment dismissing the complaint. An insurer is not obligated to pay or deny a claim until it has received verification of all relevant information requested (see 11 NYCRR 65.15 [d], [g] [1], [7]; St. Vincent’s Hosp. of Richmond v American Tr. Ins. Co., 299 AD2d 338, 340 [2002]). It is undisputed that the plaintiff’s assignor and Good Samaritan Hospital failed to respond to the defendant’s verification requests for the record containing the assignor’s post-accident blood alcohol level. Accordingly, the period within which the defendant was required to respond to the plaintiff’s claim did not begin to run, and any claim for payment was premature (see Hospital for Joint Diseases v State Farm Mut. Auto. Ins. Co., 8 AD3d 533 [2004]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568 [2004]; cf. Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 431 [1996]). Schmidt, J.P., S. Miller, Santucci and Mastro, JJ., concur.

—[*1]

In a proceeding pursuant to CPLR article 75 to vacate an arbitrator’s award, the petitioner appeals from a judgment of the Supreme Court, Queens County (Rios, J.), dated July 16, 2004, which denied the petition and dismissed the proceeding.

Ordered that the judgment is affirmed, with costs.

The appellant, State Farm Mutual Automobile Insurance Company (hereinafter State Farm), argues that, in this “priority of payments” dispute, the arbitrator erred in concluding that State Farm was 100% liable for the payment of first-party benefits solely on the basis that State Farm’s insured vehicle was the only vehicle that actually made physical contact with the injured pedestrian (see Insurance Law § 5105 [b]; 11 NYCRR 65-3.12 [e]; 65-3.14 [b] [3]; 65.15 [m] [2] [iii]; Matter of Pacific Ins. Co. v State Farm Mut. Auto. Ins. Co., 150 AD2d 455 [1989]). In opposition, Lumbermens Mutual Casualty Company (hereinafter Lumbermens) argues that the arbitrator’s award was proper in light of the absence of any competent evidence that would tend to prove that the negligence of its insured driver, whose car did not make any physical contact with the injured pedestrian, was in some way at fault in connection with the occurrence. [*2]

We agree with Lumbermens that the award could properly have been based on State Farm’s failure to prove any negligence on the part of Lumbermens’ insured driver. Also, even assuming that the arbitrator might have misapplied applicable law as argued by State Farm, the arbitrator’s award was at least supported by a “reasonable hypothesis” and was not contrary to what could be fairly described as settled law (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 224 [1996]; see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 231 [1982]; Matter of Hegarty v Board of Educ. of City of N.Y., 5 AD3d 771 [2004]; Matter of Hanover Ins. Co. v State Farm Mut. Auto. Ins. Co., 226 AD2d 533 [1996]; Matter of Adams v Allstate Ins. Co., 210 AD2d 319 [1994]; Matter of Shand, 74 AD2d 442, 454 [1980]). Thus, the arbitrator’s award was not subject to vacatur under CPLR 7511 (b) (1). Prudenti, P.J., Schmidt, Luciano and Lifson, JJ., concur.

—[*1]

In an action to recover no-fault medical payments under insurance contracts, the plaintiffs, New York and Presbyterian Hospital, as assignee of Jorge Peralta, New York Hospital Medical Center of Queens, as assignee of Christopher O’Neill, Mary Immaculate Hospital, as assignee of Racheal Castro, and Nyack Hospital, as assignee of Lourdes Veras, appeal from so much of an order of the Supreme Court, Nassau County (Joseph, J.), entered August 5, 2004, as denied the branch of their motion which was for summary judgment on the first cause of action and granted that branch of the defendant’s cross motion which was for summary judgment dismissing the first cause of action.

Ordered that the appeal by the plaintiffs New York Hospital Medical Center of Queens, as assignee of Christopher O’Neill, Mary Immaculate Hospital, as assignee of Racheal Castro, and Nyack Hospital, as assignee of Lourdes Veras is dismissed, as those plaintiffs are not aggrieved by the order appealed from (see CPLR 5511); and it is further,

Ordered that the order is reversed insofar as appealed from, on the law, that branch of the motion which was for summary judgment on the first cause of action is granted and that branch of the cross motion which was for summary judgment dismissing the first cause of action is denied; and it is further, [*2]

Ordered that one bill of costs is awarded to the plaintiff New York and Presbyterian Hospital, as assignee of Jorge Peralta.

The Supreme Court erred in granting the defendant summary judgment dismissing the first cause of action based upon the fact that the verification of the claim for no-fault medical payments (pursuant to a timely assertion of the claim and, in response, a timely request by the defendant for verification) was provided long after the 180-day period within which written proof of claim must be submitted (see 11 NYCRR 65.12), specifically, more than one year after original submission of the claim to the defendant. Despite this undisputed delay by the plaintiff New York and Presbyterian Hospital (hereinafter the hospital), the defendant, upon its receipt of the requested verification in June 2003, failed to either pay or deny the claim as required by 11 NYCRR 65.15 (g) (2) (iii). The defendant is precluded from asserting the defense of the hospital’s untimeliness in this action pursuant to Insurance Law § 5106 (a) (see New York & Presbyt. Hosp. v Empire Ins. Co., 286 AD2d 322 [2001]; Presbyterian Hosp. in City of N.Y. v Atlanta Cas. Co., 210 AD2d 210 [1994]; St. Clare’s Hosp. v Allcity Ins. Co., 201 AD2d 718 [1994]; cf. Hempstead Gen. Hosp. v New York Cent. Mut. Fire Ins. Co., 232 AD2d 454 [1996]). In reaching this conclusion, we observe that the defendant’s requests for verification, sent by mail on April 15, 2002, and May 20, 2002, did not demand or require a response within any identified number of days. Adams, J.P., Krausman, Rivera and Lifson, JJ., concur.

—[*1]

Carpinello, J. Appeals (1) from an order of the Supreme Court (Lamont, J.), entered December 19, 2003 in Albany County, which granted plaintiff’s motion for summary judgment and declared that plaintiff had no duty to defend or indemnify defendant John Rafferty in an underlying personal injury action, and (2) from an order of said court, entered February 5, 2004 in Albany County, which granted plaintiff’s motion for summary judgment dismissing defendant Robert Carman’s counterclaim for no-fault insurance benefits.

The following facts are undisputed. On the evening of March 5, 2002, defendant John Rafferty, plaintiff’s insured, and defendant Robert Carman were fighting outside, adjacent to Rafferty’s car. The car itself was parked a mere two feet in front of a garage. In an attempt to extricate himself from the situation, Rafferty got into his car. Carman, in turn, placed himself between the garage door and the car while his friend blocked Rafferty’s car from the rear. Rafferty accelerated and drove Carman into the garage door, severely injuring his leg.

In this action, plaintiff successfully obtained orders declaring that it has no obligation to defend or indemnify Rafferty or to compensate Carman because the conduct engaged in by the former was subject to the policy’s exclusion for intentional acts. Both Rafferty and Carman [*2]appeal contending that Rafferty only “lightly” stepped on the accelerator intending only to scare Carman, not injure him. We are unpersuaded.

It is now well settled that there exists “a narrow class of cases in which the intentional act exclusion applies regardless of the insured’s subjective intent” (Slayko v Security Mut. Ins. Co., 98 NY2d 289, 293 [2002]). In such cases, “the intentional act exclusion [applies] if the injury [is] ‘inherent in the nature’ of the wrongful act” (id., quoting Allstate Ins. Co. v Mugavero, 79 NY2d 153, 161 [1992]). An injury is held to be “inherent in the nature” of an act when the act is so exceptional that “cause and effect cannot be separated; that to do the act is necessarily to do the harm which is its consequence; and that since unquestionably the act is intended, so also is the harm” (Allstate Ins. Co. v Mugavero, supra at 161, 160).

In these type of cases, “the theoretical possibility that the insured lacked the subjective intent to cause the harm” (Pistolesi v Nationwide Mut. Fire Ins. Co., 223 AD2d 94, 97 [1996], lv denied 88 NY2d 816 [1996]) does not preclude a finding that, for the purposes of the policy’s intentional act exclusion, such injuries are as a matter of law “intentionally caused” (Allstate Ins. Co. v Mugavero, supra at 161; see Pennsylvania Millers Mut. Ins. Co. v Rigo, 256 AD2d 769, 771 [1998]; Doyle v Allstate Ins. Co., 255 AD2d 795, 796-797 [1998]). Here, Carman’s injuries were inherent in the act of placing a car in forward motion when but two feet of space existed between the car, a pedestrian and an immovable object, clearly invoking the intentional act exclusion of Rafferty’s policy. For similar reasons, Carman’s injuries were not caused by an “accident” and, thus, he was not eligible for no-fault benefits under the policy (see Westchester Med. Ctr. v Travelers Prop. Cas. Ins. Co., 309 AD2d 927, 928 [2003]). Thus, Supreme Court properly granted summary judgment in plaintiff’s favor.

Cardona, P.J., Peters, Mugglin and Lahtinen, JJ., concur. Ordered that the orders are affirmed, with costs.

—[*1]

In an action to recover no-fault medical payments under an insurance contract, the plaintiffs, Westchester Medical Center, as assignee of Daniel Cruz, St. Vincent’s Hospital & Medical Center, as assignee of Brian Cardimone, and New York and Presbyterian Hospital, as assignee of Stanislaw Zarod, appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Mahon, J.), dated February 6, 2004, as denied their motion for summary judgment on the second and third causes of action.

Ordered that the appeal by the plaintiff Westchester Medical Center, as assignee of Daniel Cruz, is dismissed, as that plaintiff is not aggrieved by the order appealed from (see CPLR 5511); and it is further,

Ordered that the order is reversed insofar as appealed from, on the law, the motion is granted, and the matter is remitted to Supreme Court, Nassau County, for further proceedings consistent herewith; and it is further,

Ordered that one bill of costs is awarded to the plaintiffs St. Vincent’s Hospital & Medical Center, as assignee of Brian Cardimone, and New York and Presbyterian Hospital, as assignee of Stanislaw Zarod.

The Supreme Court erred in denying that branch of the plaintiffs’ motion which was for summary judgment on the second cause of action, which arises from the treatment rendered by St. Vincent’s Hospital & Medical Center (hereinafter St. Vincent’s) to Brian Cardimone, on the ground that “an issue of fact exists as to whether there was payment by the defendant in accordance [*2]with the DRG schedule.” It is undisputed that the defendant failed to pay or deny the claim for Cardimone’s treatment within 30 days after proof of such claim was submitted, nor did the defendant seek any further verification of this claim. Instead, the defendant merely tendered a belated partial payment of the claim. The defendant alleges that St. Vincent’s billed under the wrong “DRG” code, and that it paid in accordance with the correct code. However, since the defendant never sought any verification of the claim, it is precluded from raising this statutory exclusion defense based upon its failure to issue a denial of claim form within 30 days of its receipt of the claim as required by 11 NYCRR 65.15 (g) (3) (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 286 [1997]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583, 584 [2002]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 16 [1999]).

The Supreme Court also erred in denying that branch of the plaintiffs’ motion which was for summary judgment on the third cause of action, which arises from the treatment rendered by New York and Presbyterian Hospital to Stanislaw Zarod. With respect to this cause of action, the defendant failed to pay or effectively deny the hospital’s claim within 30 days of its receipt thereof, nor did it seek any further verification of the claim.

As entitlement to the no-fault benefits, as well as statutory interest and an attorney’s fee (see Insurance Law § 5106 [a]; 11 NYCRR 65-4.6) was established, we remit the matter to the Supreme Court, Nassau County, to calculate the amount owed for no-fault benefits, statutory interest, and an attorney’s fee. Adams, J.P., Santucci, Goldstein and Crane, JJ., concur.

—[*1]

In an action, inter alia, to recover unpaid no-fault benefits, the defendant appeals from a judgment of the Supreme Court, Kings County (Schneier, J.), dated October 29, 2002, which, upon granting, in part, the plaintiff’s motion for summary judgment, is in favor of the plaintiff and against it in the principal sum of $229,815.

Ordered that the judgment is reversed, on the law, with costs, the motion is denied, upon searching the record, summary judgment is awarded to the defendant, and the complaint is dismissed.

Several years before he commenced the instant action, the plaintiff, who was involved in an automobile accident, commenced an arbitration proceeding against the defendant to recover no-fault benefits he alleged had been improperly denied (see Insurance Law § 5106 [b]). By electing to arbitrate, the plaintiff waived his right to commence an action to litigate subsequent disputes over no-fault benefits to which he was allegedly entitled as a result of that accident (see Roggio v Nationwide Mut. Ins. Co., 66 NY2d 260, 263-264 [1985]; Gaul v American Employers’ Ins. Co., 302 AD2d 875 [2003]; Mack v State Farm Mut. Auto. Ins. Co., 251 AD2d 1083 [1998]; Gibeault v Home Ins. Co., 221 AD2d 826 [1995]).

Although the defendant did not move for summary judgment dismissing the complaint on the ground that the plaintiff was precluded from maintaining this action, this Court has the authority pursuant to CPLR 3212 (b) to search the record and award summary judgment to a [*2]nonmoving party with respect to a cause of action or issue that was the subject of the motion before the Supreme Court (see Dunham v Hilco Constr. Co., 89 NY2d 425, 429-430 [1996]; Merritt Hill Vineyards v Windy Hgts. Vineyard, 61 NY2d 106, 110-111 [1984]). Under the circumstances of this case, as it is clear that the plaintiff is precluded from maintaining this action, we award summary judgment to the defendant and dismiss the complaint.

In light of our determination, we need not reach the defendant’s remaining contentions. H. Miller, J.P., Ritter, Rivera and Spolzino, JJ., concur.

—[*1]

In a proceeding pursuant to CPLR article 75 to permanently stay arbitration of a claim for uninsured motorist benefits, the petitioner appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Lodato, J.H.O.), dated May 18, 2004, as denied the petition.

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

The respondents allegedly were injured when the vehicle in which they were passengers collided with another vehicle, and was then struck in the rear by a third vehicle. The third vehicle fled the scene, and the identity of its owner and operator has never been ascertained. At the time of the accident, the vehicle the respondents were traveling in was insured by the petitioner, Allstate Insurance Company (hereinafter Allstate). Shortly after the accident, the respondents’ attorney notified Allstate that the respondents were making a claim for uninsured/underinsured motorist benefits under the policy it had issued to its insured. However, neither this claim letter, nor the “Notice of Intention to Make Claim” forms and applications for no-fault benefits which the respondents submitted to Allstate, indicated that an unidentified or hit-and-run vehicle was involved in the accident. The respondents subsequently demanded arbitration of their claim for uninsured motorist benefits arising from a hit-and-run accident, and Allstate commenced this proceeding to permanently stay arbitration. In its petition, Allstate alleged that the respondents failed to comply with a policy provision that required a claimant to file a statement under oath, within 90 days after the accident, that he or she has a cause of action arising out of an accident with a hit-and-run vehicle. [*2]In opposition to the petition, the respondents argued that the notice provisions of Allstate’s policy were ambiguous because another section of its uninsured motorist endorsement required a claimant to furnish sworn proof of claim “after written request’ by Allstate. The Supreme Court denied Allstate’s application for a permanent stay, and we now reverse.

The requirement that a claimant file a sworn statement that he or she has a cause of action arising out of an accident with a hit-and-run vehicle, within 90 days after the accident, is a condition precedent to coverage under an uninsured motorist endorsement (see Matter of Empire Ins. Co. v Dorsainvil, 5 AD3d 480 [2004]; Matter of Legion Ins. Co. v Estevez, 281 AD2d 420 [2001]; Matter of Aetna Life & Cas. v Ocasio, 232 AD2d 409 [1996]; Matter of State Farm Ins. Co. v Velasquez, 211 AD2d 636 [1995]). Absent a valid excuse, the failure to comply with this condition precedent vitiates coverage (see Matter of Allcity Ins. Co. [Jimenez], 78 NY2d 1054 [1991]; Matter of Empire Ins. Co. v Dorsainvil, supra; Matter of Interboro Indem. Mut. Ins. Co. v Napolitano, 232 AD2d 561 [1996]; Matter of Travelers Indem. Co. [Madera], 189 AD2d 570 [1993]). However, we have also recognized that where, as here, an uninsured motorist endorsement contains ambiguous notice of claim provisions, “a failure to file a sworn statement of the hit-and-run claim . . . does not necessarily vitiate coverage when the carrier otherwise receives adequate notice of the claim” within the requisite 90-day period (Matter of American Home Assur. Co. v Joseph, 213 AD2d 633, 634 [1995]; see also Matter of Eveready Ins. Co. v Farrell, 304 AD2d 830 [2003]; Matter of Eveready Ins. Co. v Ruiz, 208 AD2d 923 [1994]). Here, neither the respondents’ claim letter, applications for no-fault benefits, nor “Notice of Intention to Make Claim” forms provided Allstate with any notice that a hit-and-run vehicle had been involved in the accident. Under these circumstances, the respondents failed to provide Allstate with adequate notice of their claim. Thus, the petition for a permanent stay of arbitration should have been granted (see Matter of American Home Assur. Co. v Joseph, supra). Schmidt, J.P., Krausman, Rivera and Fisher, JJ., concur.

—[*1]

In an action pursuant to Insurance Law § 3420 (a) (2) to recover the amount of an unsatisfied judgment against the defendant’s insured, the plaintiffs appeal from (1) an order of the Supreme Court, Kings County (Schneier, J.), dated April 8, 2004, which denied their motion for summary judgment and granted the defendant’s cross motion for summary judgment dismissing the complaint, and (2) so much of an order of the same court dated July 16, 2004, as, upon reargument and renewal, adhered to its original determination.

Ordered that the appeal from the order dated April 8, 2004, is dismissed, as that order was superseded by the order dated July 16, 2004, made upon reargument and renewal; and it is further,

Ordered that the order dated July 16, 2004, is reversed insofar as appealed from, on the law, and upon reargument and renewal, the order dated April 8, 2004, is vacated, the complaint is reinstated, the plaintiffs’ motion for summary judgment is granted, and the cross motion is denied; and it is further,

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

The plaintiff Nathaniel Shell allegedly was injured on January 2, 2000, in a motor vehicle accident involving Raul L. Park, the driver of the alleged offending vehicle, which was owned by Claymonth Park. At the time of the accident, Claymonth Park’s vehicle was insured by the defendant. The plaintiffs commenced an action against Raul L. Park and Claymonth Park (hereinafter the Parks) to recover damages for personal injuries sustained by Nathaniel Shell.

On September 24, 2002, the Supreme Court entered judgment against the Parks. A copy of this judgment was served on the defendant on September 27, 2002. This was the first notice of the plaintiffs’ claim given to the defendant by anyone. However, the defendant received tardy notice of the accident from the plaintiffs’ insurer by way of a subrogation intercompany arbitration demand dated April 5, 2002, seeking adjustment of no-fault benefits. The defendant, by letter dated April 10, 2002, promptly disclaimed coverage for “this claim” submitted by the plaintiffs’ insurance company because the defendant’s own insured failed to give prompt notice of it. The letter dated April 10, 2002, addressed to Claymonth Park, indicated that a copy of it was sent to the plaintiff Nathaniel Shell.

Relying on its disclaimer dated April 10, 2002, the defendant did not satisfy the plaintiffs’ judgment. The plaintiffs commenced this action on July 10, 2003, and the defendant served an answer dated October 20, 2003. The plaintiffs treated the answer as a disclaimer of their claim as injured parties (see Insurance Law § 3420 [a] [3]) on the basis that the answer pleaded that the plaintiffs were subject to all defenses against the insured party and that the insured party failed to give the defendant prompt notice of the accident or loss. Since the disclaimer was made more than 12 months after the defendant was notified of the plaintiffs’ claim by way of service of a copy of the judgment, the plaintiffs moved for summary judgment based on the tardiness of the disclaimer. The defendant, in support of its cross motion for summary judgment, argued that its disclaimer letter dated April 10, 2002, covered the injured parties’ claim embodied in the judgment. The Supreme Court held that the disclaimer dated April 10, 2002, was insufficient to cover the plaintiffs’ claim because the defendant was not aware of the claim at the time it sent the letter. Instead, it held that the defendant was first apprised of the plaintiffs’ claim when it received the summons and complaint in this action, and thus, the defense of late notice asserted in its answer was timely.

The plaintiffs moved for reargument and renewal, on the ground that the Supreme Court overlooked the date of the defendant’s receipt of the plaintiffs’ judgment as its first notice of the claim. In addition, the plaintiffs referred to a letter obtained in discovery that, they argued, evidenced the defendant’s awareness of the claim of the plaintiff Nathaniel Shell as early as March 26, 2002. The Supreme Court, in its order dated July 16, 2004, upon granting reargument and renewal, adhered to its original determination. In that order, the court indicated that the letter dated March 26, 2002, did not “assert a claim by [the] plaintiffs against [the] defendants.” We reverse.

The defendant’s reliance on its disclaimer dated April 10, 2002, was misplaced. An insurer’s justification for denying coverage is strictly limited to the ground stated in the notice of disclaimer (see General Acc. Ins. Group v Cirucci, 46 NY2d 862, 864 [1979]; Pawley Interior Contr., Inc. v Harleysville Ins. Cos., 11 AD3d 595, 596 [2004]; Prus v Glencott Realty Corp., 10 AD3d 390, 391 [2004]). The letter dated April 10, 2002, disclaimed coverage on the ground that its insured failed to give “prompt notice of this claim,” a no-fault subrogation claim. This language made no reference to the plaintiffs’ claim in the underlying action against the Parks. Therefore, as the Supreme Court observed, albeit for a different reason, the letter dated April 10, 2002, could not serve as a disclaimer [*2]of the plaintiffs’ claim in the underlying action against the Parks. Moreover, the letter dated April 10, 2002, was based on the failure of Claymonth Park to give prompt notice and made no reference to the failure of the plaintiff Nathaniel Shell, the injured party, to give such notice (see Vacca v State Farm Ins. Co., 15 AD3d 473 [2005]). Therefore, the disclaimer dated April 10, 2002, was ineffective against the plaintiffs (see General Acc. Ins. Group v Cirucci, supra; Halali v Evanston Ins. Co., 8 AD3d 431, 433 [2004]; Matter of State Farm Mut. Auto. Ins. Co. v Cooper, 303 AD2d 414 [2003]).

Thus, the defendant’s answer in this action was, in effect, the only disclaimer of coverage of the plaintiffs’ claim. Since it was furnished over 12 months after the plaintiffs notified the defendant of their claim by way of service of a copy of their judgment against the Parks, the disclaimer, as a matter of law, was not made “as soon as is reasonably possible” (Insurance Law § 3420 [d]; see Hartford Ins. Co. v County of Nassau, 46 NY2d 1028, 1030 [1979]; Government Empls. Ins. Co. v Kolodny, 269 AD2d 564, 565 [2000]). The lack of timeliness of the disclaimer renders academic any consideration of the validity of the grounds asserted therein including the staleness of notice furnished by the insured or by the injured party (see Crowningshield v Nationwide Mut. Ins. Co., 255 AD2d 813, 815 [1998]; State Farm Mut. Auto. Ins. Co. v Clift, 249 AD2d 800, 801 [1998]; Matter of Nationwide Mut. Ins. Co. v Steiner, 199 AD2d 507 [1993]; Kramer v Interboro Mut. Indem. Ins. Co., 176 AD2d 308 [1991]).

Accordingly, the Supreme Court should have granted summary judgment in favor of the plaintiffs rather than the defendant.

In view of the foregoing, it is unnecessary to reach the remaining contentions of the parties. Schmidt, J.P., Goldstein, Crane and Fisher, JJ., concur.