—[*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.

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (E. Spodek, J.), dated April 29, 2004, as denied its motion for summary judgment.

Order insofar as appealed from affirmed with $10 costs.

In this action to recover the sum of $741.03 in first-party no-fault benefits for medical supplies furnished to its assignor, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as defendant failed to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]), it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]).

Defendant was not, however, precluded from asserting the defense that the collision was in furtherance of an insurance fraud scheme, despite the untimely denial of the claim (see Matter of Metro Med. Diagnostics v Eagle Ins. Co., 293 AD2d 751 [2002]). The affidavit submitted by defendant’s SIU investigator was sufficient to demonstrate that defendant’s denial was based [*2]upon a “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]). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment was properly denied.

Contrary to defendant’s contention, defendant was not entitled to summary judgment based upon plaintiff’s assignor’s nonattendance at scheduled examinations [*3]
under oath (see Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]).

Pesce, P.J., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

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 emphasize that I disagree 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: May 19, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from an order of the Civil Court, Queens County (D. Butler, J.), entered March 10, 2004, which granted defendant’s motion, inter alia, to vacate a default judgment.

Order unanimously affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered
to plaintiffs’ assignors, a default judgment was entered against defendant. A motion to vacate a default judgment is addressed to the sound discretion of the motion court and the court’s determination “will be upheld in the absence of an improvident exercise of that discretion” (Braddy v 601 Crown St. Corp., 282 AD2d 638, 639 [2001]). Upon the totality of the circumstances presented, it cannot be said that the court below improvidently exercised its discretion in granting defendant’s motion to vacate the default judgment.
Decision Date: May 19, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs from an order of the Civil Court, Queens County (D. Butler, J.), entered February 27, 2004, which granted defendant’s motion to vacate a default judgment.

Order unanimously affirmed without costs. [*2]
In this action to recover first-party no-fault benefits for medical services rendered to plaintiffs’ assignor, a default judgment was entered against defendant. A determination vacating a default “rests in the sound discretion of the court and will be upheld in the absence of an improvident exercise of that discretion” (Braddy v 601 Crown St. Corp., 282 AD2d 638, 639 [2001]). Upon the totality of the circumstances presented, it cannot be said that the court below improvidently exercised its discretion in granting defendant’s motion to vacate the default judgment.
Decision Date: May 19, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by defendant from an order of the Civil Court, Queens County (D. Pineda-Kirwan, J.), entered December 16, 2003, denying its cross motion for summary judgment and granting plaintiff’s motion for summary judgment.

Order modified by providing that plaintiff’s motion for summary judgment is denied; as so modified, affirmed without costs.

Plaintiff health care provider commenced this action to recover $1,301.26 in first-party no-fault benefits for medical services rendered to its assignor, Rafael Rodrigues, for injuries he allegedly sustained in a motor vehicle accident on December 3, 2000. Upon a review of the record, we find that plaintiff established a prima facie entitlement to summary judgment by proof that it submitted a claim, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Inasmuch as defendant failed to pay or deny the claim within the 30-day prescribed period (11 NYCRR 65.15 [g] [3], now 11 NYCRR 65-3.8 [c]), it was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). It was not, however, precluded from asserting the defense that the alleged injuries did not arise out of a covered accident ([*2]see Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 201 [1997]). The affidavit submitted by defendant’s investigator was sufficient to demonstrate that defendant’s denial was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp., 90 NY2d at 199). Accordingly, since defendant demonstrated the existence of a triable issue of fact as to whether there was a lack of coverage (see id.; Zuckerman v City of New York, 49 NY2d 557 [1980]), plaintiff’s motion for summary judgment should have been denied.

Contrary to defendant’s contention, defendant was not entitled to summary judgment based upon plaintiff’s assignor’s nonattendance at scheduled examinations [*3]
under oath (see Star Med. Servs. P.C. v Eagle Ins. Co., 6 Misc 3d 56, 2004 NY Slip Op 24482 [App Term, 2d & 11th Jud Dists]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92 [App Term, 2d & 11th Jud Dists 2004]).

Patterson, J.P., and Rios, J., concur.

Golia, J., concurs in a separate memorandum.

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 emphasize that I disagree 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: May 19, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiffs, as limited by their brief, from so much of an order of the Civil Court, Kings County (R. Garson, J.), entered on May 20, 2004, as denied the motion by plaintiff A.B. Medical Services PLLC for summary judgment.

Order insofar as appealed from unanimously reversed without costs, motion for summary judgment granted in favor of A.B. Medical Services PLLC in the principal sum of $3,971.20 and matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

Appeal as taken by plaintiffs Somun Acupuncture P.C., and Square Synagogue Transportation Inc. unanimously dismissed. [*2]

In this action to recover assigned first-party no-fault benefits, plaintiff A.B. Medical Services PLLC established a prima facie entitlement to summary judgment by proof that it submitted completed claim forms setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). Defendant failed to provide proof in admissible form to raise a triable issue of fact as to its defense of lack of medical necessity of the services rendered (A.B. Med. Servs. PLLC v NewYork Cent. Mut. Fire Ins. Co., 3 Misc 3d 136[A], 2004 NY Slip Op 50507[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the motion by A.B. Medical Servs. PLLC should have been granted in the sum of $3,971.20 and [*3]
the matter is remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees.

Inasmuch as no issue is raised by the remaining appellants, the appeal with respect to them is dismissed (Praeger v Praeger,162 AD2d 671 [1990]).

We reach no other issue.
Decision Date: April 29, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from so much of an order of the Civil Court, Kings County (E. Gesmer, J.), entered April 13, 2004, as denied its motion for summary judgment.

Order insofar as appealed from unanimously 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 to recover first-party no-fault benefits for medical equipment furnished its assignors, plaintiff established a prima facie entitlement to summary judgment by proof that it submitted the functional equivalent of the statutory claim forms (11 NYCRR 65-3.5 [a], [f]), setting forth the fact and amount of the losses sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists]). We note that the affidavit of a plaintiff’s “officer and billing manager” is a proper vehicle in which to assert the facts of a no-fault claimant’s submission of a benefits application (e.g. A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co., [*2]2003 NY Slip Op 51392[U] [App Term, 2d & 11th Jud Dists]; see also King’s Med. Supply, Inc. v Hereford Ins. Co., 5 Misc 3d 55, 56 [App Term, 9th & 10th Jud Dists 2004]).

The burden thus shifted to defendant to create a triable issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Absent a tolling of the statutory time (Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 434 [2004]; New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]), defendant’s conceded failure timely to pay or deny the claims within the prescribed 30-day claim determination period (Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]) precludes its defenses with exceptions not herein relevant (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). Defendant sought to prove such tolling via alleged written requests for initial verification to plaintiff and three alleged follow-up verification requests which sought to examine each assignor under oath. (This court will not consider additional letters offered for the first time below in an attorney’s sur-reply affirmation [e.g. Kelsol Diamond Co. v Stuart Lerner, Inc., 286 AD2d 586, 587 (2001); 622 Bldg. Co. v Empire Blue Cross & Blue Shield, 283 AD2d 202 (2001)]).

The initial verification letter with respect to the Briones claim for $1,175 was untimely and did not toll the statutory claim determination period. Defendant is therefore subject to the preclusion sanction as to that claim and summary judgment should have been granted absent the assertion of a defense that survives preclusion. While the remaining initial verification requests (which do not address all the claims at issue), were nominally timely (11 NYCRR 65-3.5 [a]), as were the follow-up written examination under oath (EUO) requests, there is no documentary proof of mailing nor an admission of receipt, and defendant’s affiant, a claims examiner, asserted no personal knowledge of actual mailing or of facts creating a presumption of mailing (Residential Holding Corp. v Scottsdale Ins. Co., 286 AD2d 679 [2001]). Thus, defendant failed to create triable issues of fact as to the assignors’ alleged failure to comply with the initial and follow-up verification requests (e.g. Hospital for Joint Diseases v Nationwide Mut. Ins. Co., 284 AD2d 374, 375 [2001] [affiant’s failure to assert personal knowledge of mailing and “his conclusory allegations regarding (the insurer’s) office practices did not establish . . . that the defendant followed office practices ‘geared so as to ensure the likelihood’ that (the communications at issue) were always properly addressed and mailed on the date issued”]; Contemp. Med. Diag. & Treatment, P.C. v Government Empls. Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50254[U] [App Term, 2d & 11th Jud Dists]; see also New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640, 641 [2004]; S & M Supply, Inc. v GEICO Ins., 2003 NY Slip Op 51192[U] [App Term, 2d & 11th Jud Dists] [same]).
Finally, it is noted that while verification EUOs are authorized by an amendment to the Insurance Regulations effective April 5, 2002 (11 NYCRR 65-1.1 [d]), because the Insurance Department “bases the revised regulations’ applicability on the policy endorsement in effect when the claim is filed, to take advantage of the . . . [revision], an insurer must have the revised prescribed endorsement in new or renewed policies issued on or after that date” (Ocean Diagnostic Imaging P.C. v State Farm Mut. Auto. Ins. Co., ___ Misc 3d ___, 2004 NY Slip Op 24498 [App Term, 2d & 11th Jud Dists];
S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists]). While plaintiff’s claims were submitted subsequent to April 5, 2002, defendant’s submissions failed to establish that the insurance policy, in effect when the EUOs were sought, contained an endorsement authorizing such verification (see Star Med. Servs. [*3]P.C. v Eagle Ins. Co., 6 Misc 3d 56 [App Term, 2d & 11th Jud Dists 2004]; S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U], supra). Accordingly, defendant’s requests for EUOs cannot operate to toll the 30-day period. As the EUO requests were the only form of follow-up verification alleged, defendant failed to toll the prescribed claim determination period, rendering all denials untimely and precluding its defenses on this additional ground as well.

Accordingly, plaintiff’s motion for summary judgment is granted and the matter remanded to the court below for a calculation of statutory interest and an assessment of attorney’s fees pursuant to Insurance Law § 5106 (a) and the regulations promulgated thereunder.
Decision Date: April 29, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County (P. Sweeney, J.), entered June 4, 2004, which denied its motion for summary judgment.

Order unanimously modified by providing that plaintiff’s motion is granted to the extent of awarding it partial summary judgment in the principal sum of $1,999.12 and matter remanded to the court below for the calculation of statutory interest and an assessment of attorney’s fees thereon, and for all further proceedings on the remaining claim; as so modified, affirmed without costs.

In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff health care provider sued to recover $1,972.08 for a test performed on August 20, 2001 and $1,999.12 for a test performed on August 27, 2001. Defendant timely denied both claims based on peer reviews.

Plaintiff moved for summary judgment as to both claims. With regard to the test performed by plaintiff on August 20, 2001, the affirmed peer reviewer’s uncontroverted statement submitted in opposition to the motion asserted, inter alia, that there were no interim notes between the time of the initial evaluation, one day after the accident, and the performance of the test. Accordingly, the peer reviewer’s conclusion that there has been no showing that said test was medically necessary raises a triable issue of fact as to its medical necessity. However, there was an evaluation before the second test was performed by plaintiff on August 27, 2001, the report of which was apparently provided by plaintiff to defendant but was not given to the peer reviewer by defendant. In his affirmed statement submitted in opposition to the motion, the peer reviewer recommended denial of the August 27, 2001 claim citing the same reason given in the [*2]prior peer review. Since there was such an evaluation prior to plaintiff administering the second test on August 27, 2001, the defendant’s basis for denial as set forth in the peer review lacks merit in fact and thus plaintiff’s motion for summary judgment as to this claim should be granted.
Decision Date: April 29, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

Appeal by plaintiff from an order of the Civil Court, Kings County (A. Fisher Rubin, J.), entered October 28, 2003, which denied its motion for summary judgment.

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

In this action to recover $2,670.40 in assigned first-party no-fault benefits for medical treatment rendered its assignor, plaintiff established its prima facie entitlement to summary judgment by its proof that it submitted claims setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]). Defendant’s conceded failure to pay or deny the claim within 30 days of receipt precluded defendant from interposing most defenses (Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; Melbourne Med., P.C. v Utica Mut. Ins. Co., 4 Misc 3d 92, 93 [App Term, 2d & 11th Jud Dists 2004]).

The so-called “delay letter” cannot be deemed to toll the claim determination period since it sought no verification and, in any event, issued after the period for verification had expired [*2](defendant does not deny it received the claim on January 7, 2002 as proved by plaintiff’s postal delivery receipt) (id. at 94; S & M Supply v Nationwide Mut. Ins. Co., 3 Misc 3d 138[A], 2004 NY Slip Op 50557[U] [App Term, 2d & 11th Jud Dists]). This court has repeatedly held that a letter “which merely informs a claimant that a decision on the claim is delayed pending an investigation and which does not specify a particular form of verification and the person or entity from whom the verification is sought, may not be relied upon to toll the 30-day claim determination period” (A.B. Med. Servs. PLLC v Country-Wide Ins. Co., 6 Misc 3d 137[A], 2005 NY Slip Op 50255[U] [App Term, 2d & 11th Jud Dists]; see e.g. Melbourne Med., P.C., 4 Misc 3d at 94).

We further note that, while examinations under oath (EUOs) are available to an insurer under the revised regulations (effective April 5, 2002) which provide for them pursuant to the verification protocols, they are authorized only as to claims filed after that date and pursuant to a revised mandatory endorsement contained in new or renewed policies issued on or after April 5, 2002 (e.g. S & M Supply v State Farm Mut. Auto. Ins. Co., 4 Misc 3d 130[A], 2004 NY Slip Op 50693[U] [App Term, 9th & 10th Jud Dists]). Thus, under New York’s No-Fault Law, defendant’s EUO requests, which issued for claims filed before the revised regulations’ effective date (e.g. Capio Med., P.C. v Progressive Cas. Ins. Co., ___ Misc 3d ___, 2005 NY Slip Op 50526[U] [App Term, 2d & 11th Jud Dists]; S&M Supply Inc. v State Farm Mut. Auto. Ins. Co., 5 Misc 3d 128[A], 2004 NY Slip Op 51250[U] [App Term, 9th & 10th Jud Dists]) were ineffective to toll the claim determination period.

Defendant seeks to apply Massachusetts’ no-fault EUO provisions which, defendant urges, allow for EUOs under the facts herein and also provide that an insured’s failure to cooperate with such requests would void defendant’s obligation to pay no-fault benefits. Defendant also invokes Massachusetts law insofar as it provides that an insured’s fraudulent application for an insurance policy is a basis for retroactive cancellation of the policy, which cancellation would, under New York’s No-Fault Law, implicate coverage and constitute an exception to the preclusion rule. According to defendant, claimant, holding a Florida driver’s license and Massachusetts automobile registration, was issued a Massachusetts policy in the expectation that he would apply for a Massachusetts driver’s license within the time required by Massachusetts law. Defendant concedes that the insured failed to do so and that it did not act to terminate the policy or even investigate whether, as it now asserts, the insured at all relevant periods resided in New York and garaged the subject vehicle in New York. However, defendant’s claim of a fraudulent application is presented merely in the form of conclusory assertions of fact and unsubstantiated suspicions by an attorney who lacks personal knowledge of the facts and without any supporting documentation in admissible form sufficient to create a triable issue of fraud (id.; see also Matter of Liberty Mut. Ins. Co. v Guerrier, 307 AD2d 1033 [2003]). If defendant’s assertions of fact are true, that at the time of the accident, the insured was a New York domiciliary who garaged his automobile in New York, and defendant elected to issue the policy to a party licensed in Florida and to continue said policy notwithstanding the insured’s failure to obtain a Massachusetts driver’s license within the time required by Massachusetts [*3]
law, it should not be permitted to bypass New York’s bar to retroactive cancellations (Vehicle and Traffic Law § 313) merely because the insured was involved in a nominally covered accident (cf. Matter of Integon Ins. Co. v Garcia, 281 AD2d 480 [2001]).
Decision Date: April 29, 2005

—[*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.