[*1]

Jason Tenenbaum, P.C., Garden City, NY, for appellant.

Gail S. Lauzon (Russo & Tambasco, Melville, NY [Susan J. Mitola], of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award, the petitioner appeals from an order of the Supreme Court, Queens County (Thomas D. Raffaele, J.), dated January 22, 2016. The order denied the petition pursuant to CPLR article 75 to vacate the arbitration award.

Ordered that the order is affirmed, with costs.

On August 6, 2012, a vehicle owned and operated by the petitioner was struck in the rear by a vehicle owned and operated by Omau Kwende Channer. Both vehicles were insured by the respondent, GEICO Insurance Company (hereinafter GEICO). Following the accident, the petitioner commenced an action against Channer to recover damages for personal injuries she allegedly sustained as a result of the accident. She obtained summary judgment in her favor on the issue of liability, after which GEICO settled that action for the sum of $25,000, which was the full limit on the insurance policy held by Channer. Thereafter, the petitioner made a claim, under her own policy with GEICO, for supplemental underinsured motorist (hereinafter SUM) benefits in the amount of $275,000. GEICO denied the SUM claim, arguing that the injury for which the petitioner sought SUM compensation (hereinafter the subject injury) was not the result of the motor vehicle accident. In response, the petitioner made a demand for arbitration.

A SUM arbitration hearing was held on January 23, 2015, and the parties submitted, inter alia, the petitioner’s medical records and independent medical examination and peer review reports commissioned by GEICO. In an award dated March 2, 2015, the arbitrator concluded that the subject injury was not the result of the motor vehicle accident, and therefore denied the petitioner’s SUM claim. Thereafter, the petitioner commenced this CPLR article 75 proceeding to vacate the SUM arbitration award. She argued that the award was arbitrary and capricious, irrational, and that the arbitrator exceeded his authority by failing to preclude GEICO from disputing causation since GEICO had taken a prior inconsistent position on that issue by paying no-fault benefits related to the subject injury. By order dated January 22, 2016, the Supreme Court denied the petition. The petitioner appeals.

Judicial review of arbitration awards is extremely limited (see Matter of County of Nassau v Civil Serv. Empls. Assn., 150 AD3d 1230, 1230 [2017]; Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 45 [2015]). Pursuant to CPLR 7511 (b) (1) (iii), a court may [*2]vacate an arbitration award if the arbitrator “exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made.” However, vacatur of an award pursuant to this provision is warranted “ ’only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power’ ” (Matter of Vintage Flooring & Tile, Inc. v DCM of NY, LLC, 123 AD3d 731, 732 [2014], quoting Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 534 [2010]; see Matter of Peterson v Katonah-Lewisboro UFSD, 134 AD3d 1125, 1125 [2015]). “ ’An award is irrational when there is no proof whatever to justify the award’ ” (Matter of Peterson v Katonah-Lewisboro UFSD, 134 AD3d at 1125, quoting Matter of Vintage Flooring & Tile, Inc. v DCM of NY, LLC, 123 AD3d at 732; see Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d at 534).

Where, as here, an arbitration award is the product of compulsory arbitration, the award “ ’must satisfy an additional layer of judicial scrutiny—it must have evidentiary support and cannot be arbitrary and capricious’ ” (Matter of Liberty Mut. Fire Ins. Co. v Global Liberty Ins. Co. of N.Y., 144 AD3d 1160, 1161 [2016] [internal quotation marks omitted], quoting City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917, 919 [2011]; see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d at 46).

Here, the arbitrator’s determination was rational, supported by evidence, and not arbitrary and capricious. Moreover, while the petitioner contends that the arbitrator exceeded the scope of his authority by disregarding GEICO’s prior inconsistent position, taken in the no-fault context, the alleged error was, at most, an error of law which would not warrant vacatur of the arbitration award (see Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d at 534).

The petitioner’s remaining contentions are without merit. Mastro, J.P., Rivera, Hinds-Radix and Iannacci, JJ., concur.

[*1]

Mura & Storm, PLLC, Buffalo (Roy A. Mura of counsel), for petitioners-appellants.

Nixon Peabody LLP, Buffalo (Sheldon K. Smith of counsel), for respondent-respondent.

Appeal from an order of the Supreme Court, Erie County (John F. O’Donnell, J.), entered April 20, 2017, in a proceeding pursuant to CPLR article 75. The order denied the petition.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Petitioners issued a number of personal automobile insurance policies that included a Mandatory Personal Injury Protection Endorsement. Respondent, a company that supplies durable medical equipment including a Multi-Mode Stimulator Kit (Kit), supplied the Kit to various patients insured by petitioners. After the patients assigned to respondent their rights under the policies, respondent sought reimbursement from petitioners on behalf of those patients. Petitioners sought information by an informational demand in the form of verification requests, as provided under the 120-day rule (see 11 NYCRR 65-3.8 [b] [3]), including respondent’s acquisition costs and other pricing information for the Kit. Respondent refused to provide that information within the 120 days as required under the rule, maintaining that disclosure thereof would expose trade secrets or proprietary information. In addition, respondent took the position that, when the supplier of the equipment is also the manufacturer of the equipment, the reimbursement is “the usual and customary price charged to the general public” and thus the information requested by petitioners was not necessary for reimbursement. Thereafter, petitioners denied respondent’s claims and, at respondent’s request, the parties proceeded to mandatory arbitration. The arbitrator issued 14 identical awards denying each of respondent’s claims. Respondent appealed the arbitrator’s awards to the master arbitrator, who vacated the arbitrator’s awards and remitted the matters for new hearings.

Petitioners filed the instant CPLR article 75 proceeding seeking to vacate the master arbitration awards, alleging that the master arbitrator, among other things, exceeded his authority. Supreme Court disagreed, and denied the petition. We affirm.

The “role of the master arbitrator is to review the determination of the arbitrator to assure that the arbitrator reached his [or her] decision in a rational manner, that the decision was not arbitrary and capricious . . . , incorrect as a matter of law . . . , in excess of the policy limits . . . or in conflict with other designated no-fault arbitration proceedings” (Matter of Petrofsky [Allstate Ins. Co.], 54 NY2d 207, 212 [1981]). This power “does not include the power to review, de novo, the matter originally presented to the arbitrator” (Matter of Allstate Ins. Co. v Keegan, 201 AD2d 724, 725 [2d Dept 1994]). Here, we agree with the court that the master arbitrator properly exercised his authority and limited his review of the arbitrator’s awards to assessing whether the awards were incorrect as a matter of law (see Matter of Smith [Firemen’s Ins. Co.], 55 NY2d 224, 231 [1982]; Petrofsky, 54 NY2d at 210-211). In his awards, the master arbitrator found that the arbitrator had misapplied the 120-day rule, reasoning that, pursuant to that rule, a claimant who responds within the requisite 120-day period with a “reasonable justification” is permitted to have that objection decided by the arbitrator and, if overruled by the arbitrator, is to be afforded the opportunity to produce the requested information and allow the insurer to base its decision on such information (11 NYCRR 65-3.8 [b] [3]). Contrary to petitioners’ contention, the master arbitrator did not impermissibly perform a de novo review of the evidence. Rather, the master arbitrator vacated the arbitrator’s awards based on “an alleged error of a rule of substantive law” (Matter of Acuhealth Acupuncture, P.C. v Country-Wide Ins. Co., 149 AD3d 828, 829 [2d Dept 2017] [internal quotation marks omitted]). Thus, we conclude that the court’s decision to uphold the master arbitrator’s awards in this case was rational (cf. id.). Present—Whalen, P.J., Peradotto, Lindley, Curran and Troutman, JJ.

[*1]

Thomas Torto, New York (Jason Levine of counsel), for appellant.

Gary Tsirelman, P.C., Brooklyn (Gary Tsirelman of counsel), for respondent.

Judgment, Supreme Court, New York County (Joan M. Kenney, J.), entered February 23, 2017, in favor of respondent, unanimously affirmed, without costs, and the matter is remanded for a determination of respondent’s reasonable attorney’s fees for this appeal. Appeal from judgment entered February 14, 2017, unanimously dismissed, without costs, as superseded by the appeal from the February 23, 2017 judgment.

Respondent commenced an arbitration against petitioner seeking reimbursement of bills for health care services it had rendered to an individual injured in a motor vehicle accident. Petitioner asserted a Mallela defense (see State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]), i.e., that it could withhold payment for the services because respondent was fraudulently incorporated. After a hearing, an arbitrator found that petitioner failed to meet its burden of providing clear and convincing evidence of fraudulent incorporation, and awarded respondent full reimbursement. The award was affirmed by the master arbitrator.

Petitioner argues that it was held to an incorrect standard of proof and that the correct standard is a preponderance of the evidence. However, the award is not subject to vacatur under either standard (see Country-Wide Ins. Co. v TC Acupuncture, P.C., 140 AD3d 643 [1st Dept 2016]; Nationwide Affinity Ins. Co. of Am. v Acuhealth Acupuncture, P.C., 155 AD3d 885, 886-887 [2d Dept 2017]). Petitioner failed to present any evidence that respondent was fraudulently incorporated.

We reject petitioner’s contention that the master arbitrator’s determination affirming the award was irrational because the arbitrator’s failure to set forth his reasons for rejecting petitioner’s Mallela defense precluded meaningful review of the award (see Matter of Guetta [Raxon Fabrics Corp.], 123 AD2d 40 [1st Dept 1987]; Matter of Nationwide Mut. Ins. Co. v Steiner, 227 AD2d 563 [2d Dept 1996]; see also Purpura v Bear Stearns Cos., 238 AD2d 216 [1st Dept 1997], lv denied 90 NY2d 806 [1997]). In any event, the master arbitrator’s determination, which considered the arbitrator’s familiarity with similar cases and past decisions on the issues presented, was rational.

Respondent is entitled to reasonable attorney’s fees for this appeal. Supreme Court has authority to award attorneys fees as this is an appeal from a master arbitration award pursuant to 11 NYCRR 65-4.10 (j) (4), which, in pertinent part, provides: “The attorney’s fee for services rendered in connection with . . . a court appeal from a master arbitration award and any further appeals, shall be fixed by the court adjudicating the matter” (see also Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 148 AD3d 703 [2d Dept 2017], recalling and vacating Matter of GEICO Ins. Co. v AAAMG Leasing Corp., 139 AD3d 947 [2d Dept 2016]). Accordingly, we remand the matter to Supreme Court for a determination of respondent’s reasonable attorney’s [*2]fees for this appeal. To the extent Country-Wide Ins. Co. v Valdan Acupuncture, P.C. (150 AD3d 560, 561 [1st Dept 2017]) takes a different approach to calculating attorneys’ fees, we decline to follow it. Concur—Renwick, J.P., Manzanet-Daniels, Mazzarelli, Gesmer, Oing, JJ.

[*1]

Printz & Goldstein, Woodbury, NY (Lawrence J. Chanice of counsel), for appellant-respondent.

Israel Israel & Purdy, LLP, Great Neck, NY (Justin Skaferowsky and Jennifer Howard of counsel), for respondent-appellant.

In a proceeding pursuant to CPLR article 75, inter alia, to vacate an arbitration award, Government Employees Ins. Co. appeals, and the petitioner cross-appeals, from an order of the Supreme Court, Queens County (Robert J. McDonald, J.), entered August 7, 2015. The order, insofar as appealed from, granted that branch of the petition which was to vacate an arbitration award dated October 10, 2014, and a master arbitration award dated January 16, 2015, and referred the matter to the arbitrator for further proceedings. The order, insofar as cross-appealed from, denied the petitioner’s application for an award of an attorney’s fee.

Ordered that the order is affirmed insofar as appealed and cross-appealed from, with one bill of costs to the petitioner.

The petitioner, Fast Care Medical Diagnostics, PLLC, named herein as Fast Care Medical Diagnostics, PLLC/PV (hereinafter Fast Care), provided certain medical services to its assignor, “PV,” in connection with injuries purportedly sustained by PV in a motor vehicle accident. At the time of such treatment, PV was 15 years old. PV and his mother executed an assignment of benefits, which assigned all rights and remedies to payment for health care services provided by Fast Care to which PV was entitled under article 51 of the Insurance Law. Fast Care submitted claims for these services to Government Employees Insurance Co. (hereinafter GEICO), for reimbursement of first-party no-fault insurance benefits (see Insurance Law § 5102). GEICO denied the claims on grounds of purported lack of medical necessity.

Fast Care sought arbitration of the dispute. The arbitrator dismissed the proceeding without prejudice, on the ground that Fast Care had failed to comply with CPLR 1209, which provides, in relevant part, that “[a] controversy involving an infant . . . shall not be submitted to arbitration except pursuant to a court order made upon application of the representative of such infant,” subject to an exception that is not applicable here. Fast Care appealed to a master arbitrator, who confirmed the determination. The master arbitrator further found that Fast Care lacked [*2]standing, because the parent of the infant patient, rather than the infant himself, was required to execute an assignment of benefits. Fast Care then instituted this proceeding pursuant to CPLR article 75, inter alia, to vacate the arbitration award.

An arbitration award may be vacated if the court finds that the rights of a party were prejudiced by (1) corruption, fraud, or misconduct in procuring the award; (2) partiality of an arbitrator; (3) the arbitrator exceeding his or her power; or (4) the failure to follow the procedures of CPLR article 75 (see CPLR 7511 [b]). In addition, an arbitration award may be vacated “if it violates strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator’s power” (Matter of Slocum v Madariaga, 123 AD3d 1046, 1046 [2014]; see Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85, 90 [2010]; Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, 79 [2003]). An arbitration award may also be vacated where it is in “ ’explicit conflict’ ” with established laws and “the ‘strong and well-defined policy considerations’ embodied therein” (Matter of City of Oswego [Oswego City Firefighters Assn., Local 2707], 21 NY3d 880, 882 [2013] [emphasis omitted], quoting Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 327 [1999]).

We agree with the Supreme Court that the arbitrator’s award was irrational and in conflict with CPLR 1209, which applies “only where [an] infant [is] a party” to an arbitration proceeding (Goldenberg v Goldenberg, 25 AD2d 670, 670 [1966], affd 19 NY2d 759 [1967]; see Schneider v Schneider, 17 NY2d 123, 127 [1966]). The infant patient was not a party to the arbitration; rather, Fast Care, as the infant’s assignee, was the party that brought the arbitration (see 11 NYCRR 65-3.11 [a]). Therefore, we agree with the court that the arbitrator disregarded established law in determining that the requirements of CPLR 1209 applied here (Schneider v Schneider, 17 NY2d at 127; see Goldenberg v Goldenberg, 25 AD2d at 670). Furthermore, the master arbitrator’s determination that the assignment of benefits was not effective was not based on any requirement set forth in established law or regulations (see generally 11 NYCRR 65-2.4 [c]).

Accordingly, we agree with the Supreme Court’s determination to vacate the awards and direct further arbitration proceedings as to the merits of Fast Care’s claims (see Matter of City of Oswego [Oswego City Firefighters Assn., Local 2707], 21 NY3d at 882; see also Matter of Local 342 v Town of Huntington, 52 AD3d 720, 721 [2008]; Matter of Kocsis [New York State Div. of Parole], 41 AD3d 1017, 1020 [2007]; Matter of Rockland County Bd. of Coop. Educ. Servs. v BOCES Staff Assn., 308 AD2d 452, 454 [2003]).

Fast Care did not demonstrate its entitlement to an award of an attorney’s fee, as the arbitrator did not reach the issue of whether the subject claims were “overdue” (Insurance Law § 5106 [a]; see generally Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997]). Balkin, J.P., Chambers, Austin and LaSalle, JJ., concur. [Prior Case History: 2015 NY Slip Op 32714(U).]

[*1]

Law Office of Jason Tenenbaum, P.C., Garden City (Jason Tenenbaum of counsel), for appellant.

Gary Tsirelman, P.C., Brooklyn (Stefan Belinfanti of counsel), for respondent.

Order, Supreme Court, Bronx County (Ruben Franco, J.), entered December 8, 2017, which, to the extent appealed from as limited by the briefs, denied plaintiff’s motion for summary judgment seeking a declaration of non-coverage for no-fault benefits as against defendant New Century Acupuncture, P.C., as assignor of defendant Heather Davis, unanimously affirmed, without costs.

Plaintiff seeks a declaration of non-coverage based on the failure of defendant Davis, the injured claimant, to appear for two scheduled independent medical examinations (IMEs), which is a condition precedent to coverage (see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559 [1st Dept 2011], lv denied 17 NY3d 705 [2011]; 11 NYCRR 65-1.1 [d]). Plaintiff sent an initial IME scheduling letter, and a re-scheduling letter, to both Davis and her attorney. After Davis failed to appear for the re-scheduled IME, plaintiff sent a third letter to the attorney, which indicated on its face that a copy had been sent to Davis. However, it is undisputed that the letter to Davis was sent to the wrong address. Thus, there was no reason for the attorney to know that Davis had not received notice of the re-scheduled IME and to tell her of the new IME date and location. Under these circumstances, the motion court properly found that plaintiff failed to demonstrate that it provided adequate notice, reasonably calculated to apprise Davis that her appearance at an IME at a specified date and location was required (see generally Congregation Yetev Lev D’Satmar v County of Sullivan, 59 NY2d 418, 423 [1983]; cf. American Tr. Ins. Co. v Marte-Rosario, 111 AD3d 442 [1st Dept 2013]). Concur—Richter, J.P., Manzanet-Daniels, Webber, Oing, Moulton, JJ.

[*1]

Rubin, Fiorella & Friedman LLP, New York (David F. Boucher, Jr. of counsel), for appellant.

Order, Supreme Court, New York County (Joan M. Kenney, J.), entered April 24, 2017, which denied plaintiff’s motion for summary judgment declaring that it has no obligation to pay the no-fault medical provider claims of defendants Lida’s Medical Supply, Inc. and American Kinetics Lab, Inc. with respect to the July 9, 2015 motor vehicle accident, unanimously reversed, on the law, without costs, the motion granted, and it is so declared.

Plaintiff’s first cause of action is for a declaratory judgment that it did not owe a duty to pay no-fault claims because the underlying claimants failed to appear for independent medical examinations (IMEs). While plaintiff’s notice of motion did not specify that it was solely moving for summary judgment on its first cause of action, its attorney’s affirmation shows that they were limiting the relief sought to this claim.

When an individual submits a personal injury claim for motor vehicle no-fault benefits, the insurance company may request that the individual submit to an IME, and if the individual fails to appear for that IME, it “constitutes a breach of a condition precedent vitiating coverage” (Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]; see Unitrin Advantage Ins. Co. v Bayshore Physical Therapy, PLLC, 82 AD3d 559, 560 [1st Dept 2011], lv denied 17 NY3d 705 [2011]; 11 NYCRR 65-1.1). Here, plaintiff established its entitlement to judgment as a matter of law by submitting the letters sent to each claimant notifying them about the date, time, and location of the initially scheduled IME and a second scheduled IME and affidavits of service for these letters. Plaintiff also submitted affidavits from each medical professional assigned to conduct the scheduled IME, with each stating that the medical professional was in his or her office at the date and time of the scheduled IME, the respective claimant failed to appear, the appointment was kept open until the end of the day, and at the end of the day, the medical professional filled out the affidavit acknowledging the nonappearance.

Because Hereford sent the notices scheduling the IMEs prior to the receipt of each of the claims, the notification requirements for verification requests under 11 NYCRR 65-3.5 and 65-3.6 do not apply (see Mapfre at 469). Furthermore, plaintiff was not required “to demonstrate [*2]that the claims were timely disclaimed since the failure to attend medical exams was an absolute coverage defense” (American Tr. Ins. Co. v Lucas, 111 AD3d 423, 424-425 [1st Dept 2013]). Concur—Richter, J.P., Gesmer, Oing, Singh, Moulton, JJ.

[*1]

Sweetbaum & Sweetbaum, Lake Success, NY (Marshall D. Sweetbaum and John S. McDonnell of counsel), for appellant.

Farber Brocks & Zane LLP, Garden City, NY (Tracy L. Frankel and William R. Brocks, Jr., of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated June 9, 2015, the petitioner appeals from (1) an order of the Supreme Court, Suffolk County (Joseph A. Santorelli, J.), dated December 9, 2015, which denied the petition and granted the application of Travelers Companies, Inc., to confirm the award, and (2) a judgment of the same court entered March 24, 2016, which, upon the order, is in favor of Travelers Companies, Inc., and against the petitioner in the principal sum of $25,000.

Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to Travelers Companies, Inc.

The appeal from the order must be dismissed because the right of direct appeal therefrom terminated with the entry of the judgment (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).

An individual insured by Allstate Insurance Company (hereinafter Allstate) and an individual insured by Travelers Companies, Inc. (hereinafter Travelers), were involved in a motor vehicle accident. In connection with that accident, Travelers paid its insured $75,000, representing coverage for basic economic loss and optional basic economic loss. Pursuant to Insurance Law § 5105 (a), Allstate reimbursed Travelers in the amount of $50,000 for the payment made to Travelers’ insured. Travelers then sought, through arbitration, to recover from Allstate the remainder of its payment to the insured. The matter was submitted to an arbitration panel. The arbitrators determined that Travelers was entitled to recoup the entire $75,000 payment to its insured and awarded Travelers $25,000.

Allstate filed a petition in the Supreme Court to vacate the arbitration award. [*2]Travelers opposed the petition, and requested that the award be confirmed. In an order dated December 9, 2015, the Supreme Court denied the petition and confirmed the award. The court then issued a judgment in favor of Travelers in the principal sum of $25,000. Allstate appeals.

To be upheld, an award in a compulsory arbitration proceeding such as this one (see Insurance Law § 5105 [b]) “must have evidentiary support and cannot be arbitrary and capricious” (Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; see Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d 40, 45-46 [2015]; Matter of Tri State Consumer Ins. Co. v High Point Prop. & Cas. Co., 127 AD3d 980 [2015]; Matter of Public Serv. Mut. Ins. Co. v Fiduciary Ins. Co. of Am., 123 AD3d 933 [2014]). “Moreover, with respect to determinations of law, the applicable standard in mandatory no-fault arbitrations is whether ‘any reasonable hypothesis can be found to support the questioned interpretation’ ” (Matter of Fiduciary Ins. Co. v American Bankers Ins. Co. of Florida, 132 AD3d at 46, quoting Matter of Shand [Aetna Ins. Co.], 74 AD2d 442, 454 [1980]; see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d at 224).

Here, the arbitrators’ determination that Travelers was entitled to recoup the entire payment made to its insured pursuant to basic economic loss and optional basic economic loss coverage was not arbitrary and capricious. Rather, it was rationally based on the relevant statutes and regulations (see Insurance Law § 5102 [a], [b]; 11 NYCRR 65-1.1, 65-1.2).

Travelers’ remaining contentions either are without merit or need not be reached in light of our determination. Austin, J.P., Roman, Sgroi and Brathwaite Nelson, JJ., concur.

[*1]

Rubin, Fiorella & Friedman LLP, New York (Aaron F. Fishbein of counsel), for appellant.

Order, Supreme Court, New York County (Barry R. Ostrager, J.), entered July 18, 2016, which, insofar as appealed from as limited by the briefs, denied plaintiff’s motion for a default judgment against certain defendants (defaulting defendants) on its first and/or second causes of action for a declaratory judgment, unanimously modified, on the law and the facts, to grant the motion as to defendants 21st Century Pharmacy a/k/a 21st Century Pharmacy Inc.; Advanced Orthopedics and Joint Preservation P.C.; Angelic Physical Therapy P.C.; BMJ Chiropractic, P.C.; Coney Island Medical Practice a/k/a Coney Island Medical Practice Plan, P.C.; Dana Woolfson LMT; Electrophysiologic Medical Diagnostics, P.C.; Excel Surgery Center, L.L.C.; Franklin Hospital; GC Chiropractic P.C.; Hamza Physical Therapy PLLC; LLJ Therapeutic Services, P.T. P.C.; Master Cheng Acupuncture P.C.; Metropolitan Medical & Surgical P.C.; Noel Blackman Physician, P.C.; North Shore LIJ Health System a/k/a North Shore LIJ Medical PC; Ortho-Med Equip Inc.; Patchogue Open MRI, P.C. d/b/a Southwest Radiology; Quality Health Family Medical Care a/k/a Quality Health Family Medical Care P.C.; Quality Medical & Surgical Supplies, L.L.C. a/k/a Quality Medical Surgical Supplies LLC; Ralph Innovative Medical, P.C.; RM Physical Therapy, P.C.; Total Psychiatric Medical Services, P.C.; Megastar Medical, P.C.; Michele Glispy, LAC; Layne Negrin, LMT; Ruby Galope, PT; and Patrick Masson, and to declare that such defendants have no right to no-fault benefits from plaintiff with respect to a September 19, 2014 motor vehicle accident, and otherwise affirmed, without costs. The Clerk is directed to enter judgment accordingly.

Plaintiff established its entitlement to a default judgment against the defaulting defendants (see CPLR 3215 [f]) except for defendant Anio Pierriseme, for whom no affidavit of nonmilitary service appears in the record (see Avgush v De La Cruz, 30 Misc 3d 133[A], 2011 NY Slip Op 50076[U] [App Term, 2d Dept, 9th & 10th Jud Dists 2011]; David D. Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C3215:16). Concur—Richter, J.P., Mazzarelli, Webber, Kern, Oing, JJ.

[*1]

Law Offices of Economou & Economou, P.C., Syosset (Ralph C. Caio of counsel), for appellant.

Rubin, Fiorella & Friedman LLP, New York (Harlan R. Schreiber of counsel), for respondent.

Order and judgment (one paper) of the Supreme Court, New York County (Debra A. James, J.), entered January 5, 2016, which granted plaintiff Unitrin Advantage Insurance Company’s (Unitrin) motion for summary judgment and declared that it had no duty to pay no-fault benefits to defendant Andrew J. Dowd, M.D., in connection with the subject April 16, 2013 collision, unanimously modified, on the law, to deny summary judgment and vacate the declaration as to the May 15, 2013, May 22, 2013, and May 31, 2013 dates of medical services, and otherwise affirmed, without costs.

Although the failure of a person eligible for no-fault benefits to appear for a properly noticed EUO constitutes a breach of a condition precedent, vitiating coverage, Unitrin was still required to provide sufficient evidence to enable the court to determine whether the notices it served on Dr. Dowd for the EUOs satisfied to the timeliness requirements of 11 NYCRR 65-3.5 (b) and 11 NYCRR 65-3.6 (b) (see Kemper Independence Ins. Co. v Adelaida Physical Therapy, P.C., 147 AD3d 437, 438 [1st Dept 2017], citing Mapfre Ins. Co. of N.Y. v Manoo, 140 AD3d 468, 470 [1st Dept 2016]). The bills for the first and second dates of medical services, May 15, 2013, and May 22, 2013, were both received by Unitrin on June 17, 2013. In accordance with 11 NYCRR 65-3.5 (b), Unitrin had 15 business days to request the EUO, or by July 1, 2013. Unitrin’s July 15, 2013 scheduling letter, even if properly mailed, was not timely as to either date of service.

Although the EUO scheduling letters for the third and fourth dates of medical services, both of which reflected services rendered on May 31, 2013, were timely, the reasons for denial on the NF-10 denial of claim form were stated solely as a failure to appear for an EUO scheduled on July 29, 2013. The second examination date, August 12, 2013, is not mentioned, and therefore did not sufficiently apprise the provider as to the reason for denial (see Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 664-665 [2d Dept 2004]).

The final claim, for date of medical services June 12, 2013, bill received on July 10, 2013, was timely and properly denied. Concur—Richter, J.P., Mazzarelli, Webber, Kern, Oing, JJ.

[*1]

Thuillez, Ford, Gold, Butler & Monroe, LLP, Albany (Daisy Ford Paglia of counsel), for appellant.

Basch & Keegan, Kingston (Derek J. Spada of counsel), for respondent.

Devine, J. Appeal from an order of the Supreme Court (Gilpatric, J.), entered November 16, 2016 in Ulster County, which denied defendant’s motion for summary judgment dismissing the complaint.

After he was injured in a motor vehicle accident, plaintiff commenced this action to recover no-fault benefits for lost wages that he allegedly would have received from a new job that he had been offered but not yet started. Supreme Court denied defendant’s motion for summary judgment dismissing the complaint. This Court reversed, granted the motion and dismissed the complaint (152 AD3d 1145 [2017]). The Court of Appeals reversed, finding “[t]riable issues of fact . . . as to plaintiff’s claim for lost wages,” and remitted the matter so that this Court could address any issue “raised but not determined” on the initial appeal (30 NY3d 1044, 1045 [2017]).

The remaining issue is whether defendant was provided with proper verification of plaintiff’s claim for lost wages. “[A]n insurer must pay or deny only a verified claim” (Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d 294, 299 [2007]; see 11 NYCRR 65-3.8 [a] [1]), which ordinarily requires “its receipt of verification of all of the relevant information requested” (11 NYCRR 65-3.8 [b] [3]; see Nyack Hosp. v General Motors Acceptance Corp., 8 NY3d at 299). As is relevant here, the insurer must “accept proof of claim submitted on a form other than a prescribed form if it contains substantially the same information as the prescribed [*2]form” (11 NYCRR 65-3.5 [f]; see Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157, 162 [2013]). The regulations therefore ensure that the insurer is provided with the necessary information to verify a claim but do not, in most instances, require that the information be provided on a particular form (see 11 NYCRR 65-3.5 [f]).

Defendant complains, and the record indicates, that it did not receive a completed NF-6 form (employer’s wage verification report) from VW Parts, Inc., the intended employer. The principal of VW Parts testified, however, that he did not believe that he ever received an NF-6 form to complete. Counsel for plaintiff confirmed as much in a letter responding to defendant’s demand for the completed form, requesting a copy that he could provide to VW Parts. In any event, counsel for plaintiff had already provided defendant with plaintiff’s employment application to VW Parts and a signed employment offer providing details of the proffered work. To the extent that those documents did not provide all of the information contained on a completed NF-6 form, defendant further connected with the principal of VW Parts “for an interview and verification of employment” that could have been used to obtain the remainder. Thus, inasmuch as triable questions of fact exist as to whether plaintiff’s claim was properly verified, defendant is not entitled to summary judgment dismissing the complaint on that basis.

Egan Jr., Clark and Mulvey, JJ., concur; McCarthy, J.P., not taking part. Ordered that the order is affirmed, without costs.