SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Dolores L. Waltrous, J.), entered January 6, 2006. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.
In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by a corporate officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. In opposition, defendant argued, inter alia, that plaintiff’s moving papers failed to establish plaintiff’s prima facie entitlement to judgment as a matter of law. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied. [*2]

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 28, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (George J. Silver, J.), entered December 15, 2005. The order, insofar as appealed from as limited by the brief, granted plaintiff’s motion for summary judgment.

Order, insofar as appealed from, reversed without costs and plaintiff’s motion for summary judgment denied.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by a corporate officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. The court below granted the motion and the instant appeal by defendant ensued.

On appeal, defendant contends that the affidavit by plaintiff’s corporate officer, submitted in support of the motion, failed to lay a proper foundation for the documents annexed to plaintiff’s moving papers and that, as a result, plaintiff failed to establish a prima facie case. The affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer [*2]possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers. Accordingly, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Bath Med. Supply, Inc. v Deerbrook Ins. Co., 14 Misc 3d 135[A], 2007 NY Slip Op 50179[U] [App Term, 2d & 11th Jud Dists]; Dan Med., P.C. v New York Cent. Mut. Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, the branch of the order which granted plaintiff’s motion for summary judgment is reversed and plaintiff’s motion for summary judgment denied.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 28, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Arlene Bluth, J.), entered November 28, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s counsel, an affidavit by a corporate officer of plaintiff and various documents annexed thereto. The affidavit executed by plaintiff’s corporate officer stated in a conclusory manner that the documents attached to plaintiff’s motion papers were plaintiff’s business records. The court below denied the motion on the ground that plaintiff failed to make a prima facie case because the corporate officer’s affidavit did not lay a sufficient foundation to establish that the documents annexed to plaintiff’s moving papers constituted evidence in admissible form. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s corporate officer was insufficient to establish that said officer possessed personal knowledge of plaintiff’s practices and procedures so as to lay a foundation for the admission, as business records, of the documents annexed to [*2]plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 28, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered March 22, 2005. The order, insofar as appealed from as limited by the brief, denied plaintiff’s motion for summary judgment.

Order, insofar as appealed from, reversed without costs, plaintiff’s motion for summary judgment granted and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant opposed plaintiff’s motion, asserting, inter alia, that it timely denied plaintiff’s claims based on the assignor’s failure to appear for three scheduled independent medical examinations (IMEs). Defendant also cross-moved to dismiss the complaint pursuant to CPLR 3126 for plaintiff’s failure to appear at an examination before trial. The court below denied plaintiff’s motion for summary judgment and granted defendant’s cross motion to the extent of, inter alia, compelling plaintiff, through its corporate officer, Roman Zhuchkan, D.C., to appear for an examination before trial within 60 days after service of a copy of its order with notice of entry. Plaintiff appeals, as limited by its brief, from so much of the order as denied its motion for summary judgment and contends that it [*2]was entitled to summary judgment because defendant did not, among other things, proffer evidence from one with personal knowledge to establish the mailing of the verification requests which scheduled independent medical examinations (IMEs) and the failure of plaintiff’s assignor to appear for IMEs.

While defendant asserts that it timely denied plaintiff’s claims based on the assignor’s failure to appear for three scheduled IMEs, defendant did not submit evidence from anyone with personal knowledge of the mailings of the IME scheduling notices or of the nonappearances of the assignor. As a result, defendant failed to establish the existence of a triable issue of fact (see CPLR 3212; Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720 [2006]). Therefore, the court below improperly denied plaintiff’s motion for summary judgment. Accordingly, plaintiff’s motion for summary judgment is granted and the matter is remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.

Pesce, P.J., and Belen, J., concur.

Golia, J., concurs in a separate memorandum. [*3]
SUPREME COURT OF THE STATE OF NEW YORK,
APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS
PRESENT : PESCE, P.J., GOLIA and BELEN, JJ.
IMPULSE CHIROPRACTIC, P.C.
as assignee of CECILIA RODRIGUEZ,

Appellant,

-against-
KEMPER INSURANCE CO.,

Respondent.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to note that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.
Decision Date: March 28, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Bernard J. Graham, J.), entered August 4, 2005. The order denied plaintiffs’ motion for summary judgment.

Order affirmed without costs.

In this action to recover assigned first-party no-fault benefits, plaintiffs moved for summary judgment. In opposition, defendant submitted an affidavit from an employee of the third-party retained by it to schedule and perform independent medical examination (IMEs) on defendant’s behalf. The court denied plaintiffs’ motion for
summary judgment, holding that there was an issue of fact due to the failure of plaintiffs’ assignor to comply with properly noticed IME requests. On appeal, plaintiffs contend, inter alia, that they were entitled to summary judgment because defendant failed to proffer non-hearsay evidence establishing that the IME notices were actually mailed.

Contrary to plaintiffs’ contention, the affidavit submitted by defendant was sufficient to establish that the IME notices were mailed (see Amaze Med. Supply Inc. v General Assur. Co., 11 Misc 3d 130[A], 2006 NY Slip Op 50307[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the order is affirmed. [*2]

Pesce, P.J., Weston Patterson and Belen, JJ., concur.
Decision Date: March 28, 2007

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered March 24, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff’s motion for summary judgment was supported by an affirmation from plaintiff’s
counsel, an affidavit from plaintiff s president and various documents annexed thereto. In opposition, defendant argued, inter alia, that the affidavit by plaintiff’s president failed to set forth facts sufficient to demonstrate personal knowledge of the facts set forth therein and that, as a result, plaintiff failed to establish a prima facie case. The court below denied the motion on the ground that defendant raised an issue of fact as to whether the injuries arose from a covered incident. Plaintiff appeals from the denial of its motion for summary judgment.

Inasmuch as the affidavit submitted by plaintiff’s president was insufficient to establish that she possessed personal knowledge of plaintiff’s practices and procedures so as to lay a [*2]foundation for the admission, as business records, of the documents annexed to plaintiff’s moving papers, plaintiff failed to make a prima facie showing of its entitlement to summary judgment (see Dan Med., P.C. v New York Cent. Mut. Fire Ins. Co., 14 Misc 3d 44 [App Term, 2d & 11th Jud Dists 2006]). Consequently, plaintiff’s motion for summary judgment was properly denied.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 28, 2007

[*1]

Supreme Court, Appellate Term, Second Department, March 28, 2007

APPEARANCES OF COUNSEL

McDonnell & Adels, P.C., Garden City (Martha S. Henley of counsel), for appellant. Gary Tsirelman, P.C., Brooklyn, for respondent.

{**15 Misc 3d at 111} OPINION OF THE COURT

Memorandum.

Order reversed without costs, plaintiff’s motion for summary judgment denied without prejudice to renewal upon completion of discovery, and defendant’s motion to dismiss for failure to provide discovery or, in the alternative, to compel plaintiff to provide discovery granted to the extent of compelling plaintiff to serve, within 30 days after the date of the order entered hereon, responses to defendant’s demand for written interrogatories and, within 30 days after service of such responses, to produce for examinations before trial the witnesses identified in defendant’s amended notice of examination before trial.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. Defendant served opposing papers and subsequently moved to dismiss the complaint based on plaintiff’s failure to respond to discovery demands or, in the alternative, for an order compelling plaintiff to comply with its discovery demands. The court granted plaintiff’s motion and denied defendant’s motion. The instant appeal by defendant ensued. [*2]

In State Farm Mut. Auto. Ins. Co. v Mallela (4 NY3d 313 [2005]), the Court of Appeals held that fraudulently incorporated medical corporations were not entitled to reimbursement of no-fault benefits. The Court noted that 11 NYCRR 65-3.16 (a) (12), which states that “[a] provider of health care services is not eligible for reimbursement under section 5102(a)(1) of the Insurance Law if the provider fails to meet any applicable New York State or local licensing requirement,” specifically “excluded from the meaning of ‘basic economic loss’ payments made to unlicensed or fraudulently licensed providers, thus rendering them ineligible for reimbursement” (Mallela, 4 NY3d at 320). The defense that a provider is fraudulently licensed is a nonwaivable defense (see First Help Acupuncture P.C. v State Farm Ins. Co., 12 Misc 3d 130[A], 2006 NY Slip Op 51043[U] [App Term, 2d & 11th Jud Dists 2006]; see also Allstate Ins. Co. v Belt Parkway Imaging, P.C., 33 AD3d 407 [2006]; see generally Metroscan Imaging, P.C. v GEICO Ins. Co., 13 Misc 3d 35 [App Term, 2d Dept 2006]). Defendant’s opposition papers suffice to raise issues as to who really operated and controlled plaintiff (see Midwood Acupuncture, P.C. v State Farm Mut. Auto. Ins. Co., 14 Misc 3d 131[A], 2007 NY Slip Op 50052[U] [App Term, 2d & 11th Jud Dists 2007]; Lexington Acupuncture, P.C. v State Farm Ins. Co., 12 Misc 3d 90 [App Term, 2d Dept 2006]). Since{**15 Misc 3d at 112} the opposition papers set forth that facts essential to justify opposition may exist but cannot be stated (see CPLR 3212 [f]), plaintiff’s motion for summary judgment should have been denied without prejudice to renewal upon the completion of discovery.

With respect to defendant’s motion to dismiss for failure to provide discovery or, in the alternative, to compel plaintiff to provide discovery, plaintiff failed to oppose said motion. Accordingly, defendant’s motion should have been granted to the extent of compelling plaintiff to serve responses to defendant’s demand for written interrogatories and to produce for examinations before trial the witnesses identified in defendant’s amended notice of examination before trial.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.

[*1]

Supreme Court, Appellate Term, Second Department, March 28, 2007

APPEARANCES OF COUNSEL

Bruno, Gerbino & Soriano, LLP, Melville (Charles W. Benton of counsel), for appellant.

{**15 Misc 3d at 98} OPINION OF THE COURT

Memorandum.

Order affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved for summary judgment predicated on the lack of coverage, i.e., that the assignor’s injuries, if any, did not arise from the underlying traffic incident, and, if they did, the incident was staged to defraud defendant. After the court (Norman Janowitz, J.) denied defendant’s motion, plaintiff then moved for summary judgment, which defendant opposed essentially on the same proof of fraud submitted in support of its own motion. The court (Erica L. Prager, J.) declined to review defendant’s proof of fraud on the ground that the prior determination, that the proof did not support defendant’s motion, was the law of the case. The court granted plaintiff’s motion and this appeal ensued.

Contrary to the determination of the court below, the prior order which denied defendant’s motion for summary judgment did not bar reconsideration of defendant’s proof of fraud in opposition to plaintiff’s motion, since the quantum of proof needed to obtain summary judgment is higher than that necessary to establish a triable issue of material fact in opposition to such a motion (e.g. Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1068 [1979]; Stone v Goodson, 8 NY2d 8, 12 [1960]; Kwi Bong Yi v JNJ Supply Corp., 274 AD2d 453 [2000]). [*2]

To interpose a defense of staged-accident fraud sufficient to raise a triable issue of fact, defendant must establish “the fact or founded belief that the alleged injur[ies] do[ ] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]; Ocean Diagnostic Imaging P.C. v Allstate Ins. Co., 6 Misc 3d 134[A], 2005 NY Slip Op 50189[U] [App Term, 9th & 10th Jud Dists 2005]). Mere “unsubstantiated assertions or speculations” are insufficient (Alvarez v Prospect Hosp., 68 NY2d 320, 327 [1986]). The affidavit of defendant’s special investigator and the attached exhibits failed to substantiate the investigator’s conclusory allegations of the insured’s participation in a “ring” that stages traffic incidents to defraud insurers (see Comprehensive Mental v Allstate Ins. Co., 14 Misc 3d 130[A], 2007 NY Slip Op 50017[U] [App Term, 9th & 10th Jud Dists 2007]; Ocean Diagnostic Imaging P.C. v Allstate Ins. Co., 6 Misc 3d 134[A], 2005 NY Slip Op 50189[U] [2005], supra). In addition, the discrepancies in the testimony{**15 Misc 3d at 99} given by two passengers during their examinations under oath were insufficient to establish a founded belief that the alleged injuries did not arise out of a covered accident (see A.B. Med. Servs. PLLC v State Farm Mut. Auto. Ins. Co., 12 Misc 3d 129[A], 2006 NY Slip Op 51033[U] [App Term, 2d & 11th Jud Dists 2006]).

We note that the insured had no obligation to appear for an examination under oath because “at the applicable time, the insurance regulations contained no authorization for examinations under oath” (Amstel Chiropractic v Omni Indem. Co., 2 Misc 3d 129[A], 2004 NY Slip Op 50088[U], *1 [App Term, 2d & 11th Jud Dists 2004]). In such circumstances, the mere failure to appear for such an examination does not support an inference of “the fact or founded belief” that the underlying incident was staged to defraud.

McCabe, J.P., Tanenbaum and Lippman, JJ., concur.

—[*1] Siben & Siben, LLP, Bay Shore, N.Y. (Shayne, Dachs, Stanisci, Corker & Sauer [Jonathan A. Dachs] of counsel), for appellant.

Cullen and Dykman, LLP, Brooklyn, N.Y. (Joseph Miller of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to stay arbitration of a claim for underinsured motorist benefits, Mark W. Ward appeals from an order and judgment (one paper) of the Supreme Court, Suffolk County (Henry, J.), dated March 31, 2005, which granted the petition and permanently stayed the arbitration.

Ordered that the order and judgment is reversed, on the law, without costs or disbursements, the petition is denied, and the proceeding is dismissed.

The appellant was injured in an automobile accident, at which time the appellant’s vehicle was insured under a policy issued by New York Central Mutual Fire Insurance Company (hereinafter the petitioner). The policy provided, inter alia,

“II. Damages for Bodily Injury Caused by Uninsured Motor Vehicles

“We will pay all sums that the insured or the insured’s legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured motor vehicle because of bodily injury sustained by the insured, caused by an accident arising out of such uninsured motor vehicle’s ownership, maintenance or use, subject to the Exclusions, Conditions, Limits and other provisions of this SUM endorsement . . .

[*2]“V. Part E—DUTIES AFTER AN ACCIDENT OR LOSS, Part E is replaced by the following: DUTIES AFTER AN ACCIDENT OR LOSS, We have no duty to provide coverage under this policy if the failure to comply with the following duties is prejudicial to us: A: We must be notified as soon as reasonably possible of how, when and where the accident or loss happened. Notice should also include the names and addresses of any injured persons and of any witnesses.”

It is well settled that a contract of insurance is no different from any other contract and must be construed in a fair and reasonable manner, having regard to the risk and subject matter of the policy, and that special rules such as liberal construction in favor of the insured and against the insurer who drew the contract apply (see Matter of Mostow v State Farm Ins. Cos., 88 NY2d 321 [1996]; Ace Wire & Cable Co. v Aetna Cas. & Sur. Co., 60 NY2d 390 [1983]; General Assur. Co. v Schmitt, 265 AD2d 299, 300 [1999] [internal quotation marks omitted] [“The law is clear that if an insurance policy is written in such language as to be doubtful or uncertain in its meaning, all ambiguity must be resolved in favor of the insured against the insurer”]).

In the present case, the petitioner clearly assumed a contractual obligation to provide coverage for the appellant unless the appellant’s failure to comply with his contractual duties is prejudicial to it. Here, the appellant substantially complied with the policy’s notice and proof of claim conditions insofar as he supplied the petitioner with prompt written notice of the accident, an application for no fault benefits, a sworn police accident report, and authorizations to obtain medical records. The petitioner demonstrated no prejudice in this matter stemming from the appellant’s failure to submit the proffered proof of claim form (see Matter of Nationwide Mut. Ins. Co. [Mackey], 25 AD3d 905 [2006] [the insured’s attorney supplied prompt written notice of the accident, made a claim for no-fault benefits, and indicated that SUM coverage was implicated. Written notice regarding a SUM claim was repeated at least twice over the ensuing six months. The insured forwarded to the insurer the police accident report as well as the pertinent medical records. The insurer did not deny receiving any of these various letters and documents from the insured. The insurer failed to show any prejudice and, under the circumstances, was not permitted to disclaim SUM coverage]).

This Court has held that where an insurance policy is conditioned upon the insured’s timely completion and return of proof of claim forms, the insured’s failure to do so, or to have a reasonable excuse for the failure, is a breach of a condition precedent that vitiates coverage and justifies a permanent stay of arbitration (see Matter of New York Cent. Mut. Fire Ins. Co. v Daley, 273 AD2d 315 [2000]; Matter of New York Cent. Mut. Fire Ins. Co. v Shepard, 249 AD2d 549 [1998]).

For many years, New York has followed the rule that an insured’s failure to provide timely notice of an accident relieves the carrier of its obligation to perform, regardless of whether it can demonstrate prejudice (see Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 442-443 [1972]). This has been known as the no-prejudice rule.

Recently, there has been a shift away from the no-prejudice rule. In Matter of Brandon (Nationwide Mut. Ins. Co.) (97 NY2d 491 [2002]), the Court required a supplementary uninsured/underinsured motorists (hereinafter SUM) insurer to demonstrate prejudice when seeking to disclaim coverage based upon untimely notice of legal action. The Court stated that, “Under these circumstances, and given the protection SUM insurers already enjoy by virtue of the notice of claim requirement and the clauses governing settlement, insurers relying on the late notice of legal action [*3]defense should be required to demonstrate prejudice. We place the burden of proving prejudice on the insurer because it has the relevant information about its own claims-handling procedures and because the alternative approach would saddle the policyholder with the task of proving a negative” (id. at 498).

Since the issuance of the order and judgment appealed from, the Court of Appeals has reaffirmed this shift away from the no-prejudice rule. In Rekemeyer v State Farm Mut. Auto. Ins. Co. (4 NY3d 468, 474-476 [2005]), the Court stated, “Plaintiff also urges this Court to relax its application of the no-prejudice rule in SUM cases where the carrier has been timely put on notice of the accident. This argument is persuasive. The rule in New York has been for years that an insured’s failure to provide timely notice of an accident relieves the carrier of its obligation to perform regardless of whether it can demonstrate prejudice (see Security Mut. Ins. Co. of N.Y. v Acker-Fitzsimons Corp., 31 NY2d 436, 442-443 [1972]). This rule is known as the no-prejudice rule. Although this rule has sometimes been characterized as the ‘traditional rule,’ it is actually a limited exception to two established contract principles; ‘ (1) that ordinarily one seeking to escape the obligation to perform under a contract must demonstrate a material breach or prejudice; and (2) that a contractual duty [requiring strict compliance] ordinarily will not be construed as a condition precedent absent clear language showing that the parties intended to make it a condition’ (Unigard Sec. Ins. Co. v North Riv. Ins. Co., 79 NY2d 576, 581 [1992] [citations omitted]). The idea behind strict compliance with the notice provision in an insurance contract was to protect the carrier against fraud or collusion (see id.) . . .The facts of the current case, while different from Brandon, also warrant a showing of prejudice by the carrier. Here, plaintiff gave timely notice of the accident and made a claim for no-fault benefits soon thereafter. That notice was sufficient to promote the valid policy objective of curbing fraud or collusion. Moreover, the record indicates that State Farm undertook an investigation of the accident. It also required plaintiff to undergo medical exams in December 1998 and February 2000. Under these circumstances, application of a rule that contravenes general contract principles is not justified. Absent a showing of prejudice, State Farm should not be entitled to a windfall (Brandon, 97 NY2d at 496 n 3, citing Clementi v Nationwide Mut. Fire Ins. Co., 16 P3d 223, 230 [Colo 2001]). Additionally, State Farm should bear the burden of establishing prejudice ‘because it has the relevant information about its own claims-handling procedures and because the alternative approach would saddle the policyholder with the task of proving a negative’ (id. at 498; see also Unigard, 79 NY2d at 584 [placing the burden of showing prejudice on the reinsurer])”

Recently, this Court followed the Rekemeyer decision in Matter of State Farm Mut. Auto. Ins. Co. v Rinaldi (27 AD3d 476 [2006]) and reversed an order granting the insurer’s petition for a stay on the basis that the insurer had received timely notice of the accident and therefore was required to demonstrate prejudice. “Where, as here, ‘an insured previously gives timely notice of the accident, the carrier must establish that it is prejudiced by a late notice of SUM claim before it may [*4]properly disclaim coverage’ (Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468, 476 [2005]). No such showing of prejudice was made by the carrier in this case” (Matter of State Farm Mut. Auto. Ins. Co. v Rinaldi, supra at 476-477).

In the present case, the appellant argues that the notice of claim exception to the no-prejudice rule set forth by the Court in Rekemeyer should now be extended to apply to proof of claim. We agree.

Here, the facts, as in Rekemeyer, warrant a showing of prejudice by the insurance carrier. The petitioner did not meet this burden of showing that the appellant’s failure to comply with his contractual duties was prejudicial to it. Therefore, the petitioner was bound by its contractual duty to provide coverage for the appellant, and the court erred in granting the petition and permanently staying the arbitration.

The appellant’s remaining contentions that the petitioner failed to timely disclaim coverage and that it waived its right to rely on the subject provision are improperly raised for the first time on appeal and we decline to consider them. Ritter, J.P., Santucci, Skelos and Dickerson, JJ., concur.

—[*1] Joseph Henig, P.C., Bellmore, N.Y., for appellants.

Epstein, Rayhill & Frankini, Woodbury, N.Y. (James Frankini and Frank Marotta of counsel), for respondent.

In an action to recover no-fault medical payments under contracts of insurance, the plaintiffs appeal from an order of the Supreme Court, Nassau County (McCarty, J.), dated August 2, 2006, which denied the motion of the plaintiff Montefiore Medical Center, as assignee of Sherice Haye, for summary judgment in its favor on the first cause of action.

Ordered that the appeal by the plaintiff New York and Presbyterian Hospital, as assignee of Haydee Marca, 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 affirmed; and it is further,

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

Contrary to the contention of the plaintiff Montefiore Medical Center, as assignee of Sherice Haye (hereinafter Montefiore), the Supreme Court properly denied its motion for summary judgment in its favor on the first cause of action. In response to Montefiore’s prima facie showing of entitlement to judgment as a matter of law (see generally Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; New York Univ. Hosp. Rusk Inst. v Hartford Acc. & Indem. Co., [*2]32 AD3d 458 [2006]; Hospital for Joint Diseases v Allstate Ins. Co., 21 AD3d 348 [2005]), the defendant submitted the hospital records of the patient and other material which raised a triable issue of fact as to whether the condition for which the patient was treated was unrelated to her motor vehicle accident (see generally St. Luke’s Roosevelt Hosp. v Allstate Ins. Co., 303 AD2d 743 [2003]). Accordingly, a triable issue of fact exists regarding whether the defendant’s denial of no-fault benefits in this case was proper.

Montefiore’s remaining contentions are without merit. Mastro, J.P., Florio, Carni and McCarthy, JJ., concur.