[*1]

McDonnell & Adels, PLLC, Garden City, N.Y. (Jannine A. Gordineer of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y. (Gregory Henig of counsel), for respondent.

In an action to recover no-fault benefits under a policy of automobile insurance, the defendant appeals from a judgment of the Supreme Court, Nassau County (Brandveen, J.), entered September 26, 2013, which, upon an order of the same court entered September 10, 2013, granting that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action, is in favor of the plaintiff NYU-Hospital for Joint Diseases, as assignee of Martha G. Lopez, and against it in the principal sum of $19,095.62.

Ordered that the judgment is reversed, on the law, with costs, that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action is denied, and the order entered September 10, 2013, is modified accordingly.

On October 18, 2012, Martha G. Lopez allegedly was injured in a motor vehicle accident. Approximately six months later, Lopez underwent surgery at the plaintiff NYU-Hospital for Joint Diseases (hereinafter the plaintiff). Lopez assigned her rights to no-fault benefits to the plaintiff. On October 18, 2012, the plaintiff mailed a copy of the NF-5 claim form to the defendant, Lopez’s automobile insurance carrier. The defendant received it on or about October 20, 2012, and thereafter issued an NF-10 denial of claim form dated November 14, 2012. The plaintiff, while not disputing that the defendant had issued a denial of claim within 30 days after its receipt of the NF-5 claim form, asserted in its motion for summary judgment that the NF-10 form was “defective” because it “contain[ed] the wrong amount of the bill and the wrong amount in dispute.” Upon an order entered September 10, 2013, granting that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action, the Supreme Court entered a judgment in favor of the plaintiff and against the defendant in the principal sum of $19,095.62.

Among the ways in which a no-fault insurer may comply with the “30 day rule” (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; [c]) is by issuing a “timely and sufficient” NF-10 denial of claim form within 30 days after its receipt of an NF-5 claim form (Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 46 [2013]). Nonprejudicial mistakes or omissions in [*2]an otherwise timely and proper “NF-10” denial of claim form are not necessarily fatal (see Wyckoff Hgts. Med. Ctr. v Government Empls. Ins. Co., 114 AD3d 855 [2014]; NYU-Hospital for Joint Diseases v Esurance Ins. Co., 84 AD3d 1190, 1191-1192 [2011]; St. Barnabas Hosp. v Penrac, Inc., 79 AD3d 733, 734 [2010]; see also Westchester Med. Ctr. v Government Empls. Ins. Co., 77 AD3d 737, 738 [2010]; cf. St. Vincent’s Hosp. & Med. Ctr. v New Jersey Mfrs. Ins. Co., 82 AD3d 871 [2011]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664 [2004]). Here, the papers submitted in support of the plaintiffs’ motion for summary judgment included a copy of the defendant’s NF-10 denial of claim form. Contrary to the plaintiff’s contention, the NF-10 form was timely and sufficient. Under the circumstances of this case, the plaintiffs did not meet their prima facie burden of establishing their entitlement to judgment as a matter of law (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d at 46). Accordingly, the Supreme Court should have denied that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action, regardless of the sufficiency of the papers submitted by the defendant in opposition to the motion (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Dillon, J.P., Miller, Maltese and Duffy, JJ., concur.

[*1]

Law Office of Jason Tenenbaum, P.C., Garden City, N.Y., for appellant.

Joseph Henig, P.C., Bellmore, N.Y., for respondent.

In an action to recover no-fault benefits under a policy of automobile insurance, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered January 29, 2014, as denied, as premature, its cross motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

On September 25, 2012, the plaintiff’s assignor, Chun Chen, was allegedly involved in an accident that occurred while he was a passenger in an automobile. More than three months later, on January 15, 2013, Chen was admitted to a facility operated by Mount Sinai Hospital (hereinafter the hospital), where he allegedly remained until the next day. On January 31, 2013, Hospital Receivables Systems, Inc. (hereinafter Hospital Receivables), on behalf of the hospital, sent the prescribed “no-fault NF-5 form” request for payment to the defendant Auto One Insurance Company (hereinafter Auto One) with respect to medical treatment which Chen had received at the hospital. Auto One received this form by February 4, 2013.

On February 14, 2013, Auto One sent the hospital a request for additional verification seeking, inter alia, “colored photos of surgery, [c]ervical spine MRI films for 11/15/12 and 12/13/12, [and] [c]omplete prior medical records from Dr. Leonid Reyfman for prior injury in 2011 to include any surgery records and prior MRI films.” Auto One also allegedly sent copies of this request for verification to Chen himself.

In a letter dated March 6, 2013, a representative of Hospital Receivables advised Auto One that “the hospital is not in possession of prior medical records from Dr. Leonid Reyfman including any surgery records and prior MRI Films”; that the hospital was not “in possession of any color photos of the surgery”; and that the hospital “was not authorized to release the actual cervical spine films that are in their [sic] possession.” This letter also indicated that the complete medical records maintained by the hospital referable to its treatment of Chen had been mailed to Auto One on March 5, 2013. Thereafter, Auto One sent a second request for verification dated March 19, 2013. In response thereto, Hospital Receivables, in effect, stated that it had already complied with the verification request.

[*2] In April 2013, the hospital, as assignee of Chen, commenced this action seeking payment of no-fault benefits. As relevant to this appeal, the Supreme Court denied Auto One’s cross motion for summary judgment dismissing the complaint, which was premised on the theory that the existence of outstanding requests for verification rendered the action premature. Auto One appeals.

When a health care provider, as assignee of a no-fault claimant, fails to respond to a verification request, including any follow-up request, “ ’the 30-day period in which to pay or deny the claim does not begin to run, and any claim for payment by the hospital is premature’ ” (Mount Sinai Hosp. v Chubb Group of Ins. Cos., 43 AD3d 889, 890 [2007], quoting New York & Presbyt. Hosp. v Progressive Cas. Ins. Co., 5 AD3d 568, 570 [2004]; see Central Suffolk Hosp. v New York Cent. Mut. Fire Ins. Co., 24 AD3d 492 [2005]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 19 AD3d 569 [2005]). Here, Auto One failed to demonstrate its prima facie entitlement to judgment as a matter of law, since the record reveals that the hospital replied to the verification request with respect to those records in the hospital’s possession that it alleged it was authorized to release. In addition, there remain triable issues of fact regarding the “propriety” of some of Auto One’s requests for verification, including whether the items requested existed or were in the possession of the hospital or Chen (Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11, 17 [1999]; cf. Westchester Med. Ctr. v Progressive Cas. Ins. Co., 43 AD3d 1039, 1040 [2007]). Thus, the Supreme Court properly denied, as premature, Auto One’s cross motion for summary judgment dismissing the complaint.

Given the existence of the triable issues of fact outlined above, there is no merit to the hospital’s contention that we should search the record and award it summary judgment. Mastro, J.P., Chambers, Sgroi and LaSalle, JJ., concur.

[*1]

Mischel & Horn, P.C., New York (Naomi M. Taub of counsel), for appellant.

Jones Jones LLC, New York (Jacqueline R. Mancino of counsel), for respondent.

Judgment, Supreme Court, New York County (Cynthia S. Kern, J.), entered June 10, 2013, for petitioner in the total amount of $39,935.19, and bringing up for review an order, same court and Justice, entered on or about December 12, 2012, which granted the petition to confirm two arbitration awards against respondent, unanimously affirmed, with costs. Appeal from order, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

Petitioner’s insured, while driving a van during the course of his employment, was involved in a motor vehicle accident with another vehicle, driven by a nonparty who was insured under a policy issued by respondent. Petitioner paid workers’ compensation benefits to its insured in lieu of no-fault benefits, and then sought “loss transfer” reimbursement from respondent pursuant to Insurance Law § 5105, under the mandatory arbitration procedure. Respondent asserted, as an affirmative defense to petitioner’s claim, that it had disclaimed coverage to its insured on the ground of noncooperation.

As this matter involves compulsory arbitration, the awards will be upheld so long as there is evidentiary support, and they are not arbitrary and capricious (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]). Here, the arbitrators rationally construed Insurance Law § 5105 (a) as providing petitioner insurer a direct right to recover loss transfer reimbursement from respondent, an adverse insurer of a tortfeasor who had a policy in effect at the time of the accident, regardless of respondent’s disclaimer of coverage on noncooperation grounds (see Matter of State Farm Mut. Auto. Ins. Co. v City of Yonkers, 21 AD3d 1110, 1110-1112 [2d Dept 2005]; see also Insurance Law § 5102 [j] [defining “(c)overed person” as having an insurance policy “in effect”]). The loss transfer recovery right of petitioner under Insurance Law § 5105 (a) is separate from the personal right of the insured tortfeasor (and his heirs, assignees, or subrogees) to receive a defense and indemnification from respondent (see Aetna Life & Cas. Co. v Nelson, 67 NY2d 169, 175 [1986]; Matter of Liberty Mut. Ins. Co. [Hanover Ins. Co.], 307 AD2d 40, 42 [4th Dept 2003]; State Farm Mut. Auto. Ins. Co., 21 AD3d at 1110-1112).

[*2] Respondent waived any argument that the arbitrators lacked jurisdiction, since it participated fully in the arbitration proceedings, never sought a stay of the arbitration, and did not raise the argument before the arbitrators or before the Supreme Court (see Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 583 [1977]; Matter of Philadelphia Ins. Co. [Utica Natl. Ins. Group], 97 AD3d 1153, 1153 [4th Dept 2012], appeal dismissed 20 NY3d 984 [2012]). Nor did respondent assert any argument before the arbitrators that the combined awards exceeded the policy limits. In any event, the argument is unavailing.

We have considered respondent’s remaining arguments and find them unavailing. Concur—Friedman, J.P., Moskowitz, Feinman, Gische and Kapnick, JJ.

[*1]

Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Epstein, Gialleonardo, Harms & McDonald, New York, N.Y. (Mickei Milton of counsel), for respondent.

In an action to recover no-fault medical benefits under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Jaeger, J.), dated January 13, 2014, which granted the defendant’s motion to vacate a clerk’s judgment of the same court entered October 25, 2013, which, upon the defendant’s default in appearing or answering the complaint, was in favor of the plaintiff and against the defendant in the principal sum of $25,621.20, and pursuant to CPLR 3012 (d) to extend its time to appear and to compel the plaintiff to accept its late notice of appearance.

Ordered that the order is affirmed, with costs.

A defendant seeking to vacate a default in answering or appearing must demonstrate a reasonable excuse for the default and a potentially meritorious defense to the action (see CPLR 5015 [a] [1]; Eugene Di Lorenzo, Inc. v A.C. Dutton Lbr. Co., 67 NY2d 138, 141 [1986]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d 695, 696 [2011]). The determination of what constitutes a reasonable excuse lies within the trial court’s discretion (see Adolph H. Schreiber Hebrew Academy of Rockland, Inc. v Needleman, 90 AD3d 791, 792 [2011]; Remote Meter Tech. of NY, Inc. v Aris Realty Corp., 83 AD3d 1030, 1032 [2011]).

Here, the defendant established a reasonable excuse through an employee’s affidavit, which attested to a clerical oversight regarding the delay in forwarding the summons with notice to its attorney (see Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d at 696; Perez v Travco Ins. Co., 44 AD3d 738, 739 [2007]; Sound Shore Med. Ctr. v Lumbermens Mut. Cas. Co., 31 AD3d 743 [2006]). Furthermore, the defendant demonstrated a potentially meritorious defense to the action. Accordingly, in light of the foregoing, as well as the public policy favoring the resolution of cases on the merits, the defendant’s lack of willfulness, and the absence of any prejudice to the plaintiff, the Supreme Court providently exercised its discretion in granting the defendant’s motion to vacate the default judgment, to extend its time to appear, and to compel the plaintiff to accept its late notice of appearance (see CPLR 3012 [d]; NYU-Hospital for Joint Diseases v Praetorian Ins. Co., 98 AD3d 1101, 1102 [2012]; Westchester Med. Ctr. v Allstate Ins. Co., 80 AD3d at 697). Rivera, J.P., Hall, Sgroi and Maltese, JJ., concur.

[*1]

Elovich & Adell, Long Beach, N.Y. (A. Trudy Adell, Mitchel Sommer, and Darryn Solotoff of counsel), for appellant.

Breen & Clancy, Hauppauge, N.Y. (Anne Marie Caradonna of counsel), for respondent.

In a proceeding pursuant to CPLR 7503 to permanently stay arbitration of a claim for supplementary uninsured/underinsured motorist benefits, Joseph Brand appeals from an order of the Supreme Court, Nassau County (Diamond, J.), dated November 15, 2012, which granted the petition.

Ordered that the order is affirmed, with costs.

On October 17, 2011, Joseph Brand was operating a bicycle on Rockley Boulevard in Sarasota, Florida, when he was struck by a motor vehicle owned and operated by Thomas Collins. Brand sustained multiple serious injuries. Collins is a resident of Florida and his motor vehicle is registered in Florida. Brand is a resident of New York.

At the time of the accident, Collins maintained automobile liability insurance in Florida with Allstate Insurance Company with liability limits for bodily injury in the amount of $100,000 per person/$300,000 per occurrence and supplementary uninsured/underinsured motorist (hereinafter SUM) coverage for bodily injury in the amount of $100,000 per person/$300,000 per occurrence. Allstate tendered the bodily injury policy limit in the amount of $100,000 in settlement of Brand’s claim.

At the time of the accident, Brand maintained automobile insurance coverage with the petitioner Unitrin Direct/Warner Insurance Company (hereinafter Unitrin) with policy limits for bodily injury also of $100,000 per person/$300,000 per occurrence and SUM coverage for bodily injury also of $100,000 per person/$300,000 per occurrence. Brand claimed that his injuries exceeded the limits of Collins’ policy, and demanded from the American Arbitration Association in New York arbitration of a claim for SUM benefits under his Unitrin policy. In response to Brand’s demand for arbitration, Unitrin moved for a permanent stay of arbitration on the ground that the SUM coverage was not triggered under New York law because the offending vehicle was not underinsured since Collins’ bodily injury liability coverage under the Allstate policy equaled Brand’s bodily injury liability coverage under the Unitrin policy. Unitrin argues that the “center of [*2]gravity”/”grouping of contacts” analysis demonstrates that New York is the forum that has the most significant contact to the dispute such that New York law should govern this matter. Brand contends, however, that under the “center of gravity”/”grouping of contacts” analysis, Florida law should control.

It is undisputed that this conflict of law question, although arising in the context of a motor vehicle accident, must be resolved by the conflict of law rules relevant to contracts, not torts (see Matter of Eagle Ins. Co. v Singletary, 279 AD2d 56 [2000]). Generally, “the courts apply the more flexible ‘center of gravity’ or ‘grouping of contacts’ inquiry, which permits consideration of the ‘spectrum of significant contacts’ in order to determine which State has the most significant contacts to the particular contract dispute” (id. at 58-59, quoting Matter of Allstate Ins. Co. [Stolarz—New Jersey Mfrs. Ins. Co.], 81 NY2d 219, 226 [1993]). “In general, significant contacts in a case involving contracts, in addition to the place of contracting, are the place of negotiation and performance, the location of the subject matter of the contract, and the domicile or place of business of the contracting parties” (id. at 59). As to insurance contracts specifically, significance has been attached to the “ ’local law of the state which the parties understood was to be the principal location of the insured risk . . . unless with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 [of the Restatement] to the transaction and the parties’ ” (Zurich Ins. Co. v Shearson Lehman Hutton, 84 NY2d 309, 318 [1994], quoting Restatement [Second] of Conflict of Laws § 193). In the case of a noncommercial vehicle, which is by its nature mobile, the principal location of the insured risk is the place where the vehicle is to be principally garaged (Matter of Eagle Ins. Co. v Singletary, 279 AD2d at 59).

Here, as the Supreme Court correctly noted, the insurance contract at issue was written to conform to the laws, rules and regulations of New York State, and was obtained in New York by Brand, a New York resident, from an insurance company doing business in New York. Furthermore, Brand served the demand for SUM arbitration upon the American Arbitration Association in New York. Applying the grouping of contacts inquiry to these facts, New York has the most significant contacts with the parties and the contract. Indeed, such a conclusion would be in conformity with the reasonable expectations of the contracting parties.

Brand’s reliance on Florida as the situs of the accident confuses the contacts that might be significant in a tort case with those that are material in a contract dispute (see Matter of Allstate Ins. Co. [Stolarz—New Jersey Mfrs. Ins. Co.], 81 NY2d 219 [1993]). New York law applies herein.

Under New York law, SUM coverage is only triggered where the bodily injury liability insurance limits of the policy covering the tortfeasor’s vehicle are less than the liability limits of the policy under which a party is seeking SUM benefits (see Insurance Law § 3420 [f] [2] [A]; Matter of Allstate Ins. Co. v Rivera, 12 NY3d 602, 607-608 [2009]; Matter of AIU Ins. Co. v Hibbert, 85 AD3d 779 [2011]). Here, Collins’ Allstate policy limits for bodily injury were identical to Brand’s Unitrin policy limits for bodily injury. Hence, Collins does not qualify as an underinsured driver.

Accordingly, the Supreme Court properly granted the petitioner’s application to permanently stay arbitration of a claim for SUM benefits.

Brand’s contention that Unitrin’s payment of first party benefits constituted an agreement that Florida law controls is without merit, as Unitrin’s payment of first party benefits in the first instance was required pursuant to 11 NYCRR 65-3.12 (a) (3) and (b). To the extent there was a dispute between Unitrin and Allstate as to the priority of first party benefits, that is a matter to be resolved between the insurers (see Insurance Law § 5105; 11 NYCRR 65-3.12 [b]; 65-4.11).

Brand’s remaining contentions are without merit. Skelos, J.P., Austin, Sgroi and LaSalle, JJ., concur.

[*1]

Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Freiberg, Peck & Kang, LLP, Armonk, N.Y. (Yilo J. Kang of counsel), for respondent.

In an action to recover no-fault benefits under a policy of automobile insurance, the plaintiff appeals from an order of the Supreme Court, Nassau County (McCormack, J.), dated October 16, 2012, which denied its motion for summary judgment on the complaint and granted the defendant’s cross motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the plaintiff’s motion for summary judgment on the complaint is granted, and the defendant’s cross motion for summary judgment dismissing the complaint is denied.

In March 2011, Ana Rodriguez, who was insured under a policy of automobile insurance issued by the defendant, New York Central Mutual Fire Insurance Company (hereinafter New York Central), allegedly was injured in an automobile accident. In November 2011, she received treatment at a hospital facility of the plaintiff, Mount Sinai Hospital (hereinafter Mount Sinai). In early December 2011, a few days after Mount Sinai rendered this treatment, it sought payment for it. Mount Sinai’s third-party biller, The Outsource Group (hereinafter Outsource), sent a Form UB-04 and a letter requesting payment to New York Central. Twenty days after New York Central received the request, it requested verification of Mount Sinai’s claim. Approximately one week after New York Central sent the verification request, it received from Outsource more than 100 pages of documents, including records of Rodriguez’s treatment at Mount Sinai and various forms Rodriguez had completed there. New York Central did not request further verification. On January 27, 2012, less than 30 days after it received these records, New York Central issued a denial of the claim on a Form NF-10. The Form NF-10 was, in all substantial respects, complete.

Two months later, on March 26, 2012, Mount Sinai, which was now represented by a different third-party biller, issued another request for payment of its bill for the treatment it had rendered to Rodriguez. This time, Mount Sinai’s third-party biller issued the request on a Form NF-5. New York Central ignored this request for payment, and, in May 2012, Mount Sinai, as assignee of Rodriguez, commenced this action seeking payment. Mount Sinai eventually moved for summary judgment on the complaint, and New York Central cross-moved for summary judgment dismissing [*2]the complaint. The Supreme Court denied Mount Sinai’s motion and granted New York Central’s cross motion. Mount Sinai appeals. We reverse.

In Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (106 AD3d 157 [2013]), this Court summarized the claim procedure under New York’s “no-fault” insurance scheme:

“Pursuant to the regulations promulgated by the Superintendent of Insurance to implement the No-Fault Law (Insurance Law art 51), an injured party, or that person’s assignee, must submit a written notice of claim to an insurer no later than 45 days after services are rendered (11 NYCRR 65-2.4). The written notice required to obtain first party benefits ‘shall be deemed to be satisfied by the insurer’s receipt of a completed prescribed application for motor vehicle no-fault benefits (NYS Form N-F 2) . . . or by the insurer’s receipt of a completed hospital facility form (NYS Form N-F 5)’ (11 NYCRR 65-3.3 [d]). ‘[P]roof of claim . . . shall include verification of all of the relevant information requested’ (11 NYCRR 65-3.8 [a] [1]). ‘An 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 form’ (11 NYCRR 65-3.5 [f]). However, 11 NYCRR 65-3.5 (g) provides that ‘[i]n lieu of a prescribed application for motor vehicle no-fault benefits submitted by an applicant [NYS Form N-F 2] and a verification of hospital treatment (NYS form NF-4), an insurer shall accept a completed hospital facility form (NYS form NF-5) (or an NF-5 and uniform billing form [UBF-1] which together supply all the information requested by the NF-5) submitted by a provider of health services with respect to the claim of such provider.’

“Within 30 calendar days after receipt of the proof of claim for no-fault benefits, an insurer can either pay the claim, in whole or in part, deny it, or seek verification of it (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [c]). A no-fault insurance carrier waives its defenses, other than those based on the complete absence of coverage (e.g., a defense to the effect that it never wrote a policy for the claimant), if it fails to deny a no-fault claim, or seek verification, within 30 calendar days after having received proof of claim (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; [c] . . . ).

“When a no-fault claim has been assigned to a hospital or medical provider and the hospital or medical provider sends an N-F 5 form to the no-fault insurer, the no-fault insurer’s receipt of an N-F 5 form triggers the running of the 30-day period within which the insurer has a duty to pay or to deny the claim, or to seek verification of it. Subsequent to the receipt of the N-F 5 form, if the insurer requires any additional information to evaluate the proof of claim, such request for verification must be made within 15 business days of the receipt of the N-F 5 form in order to toll the 30-day period (see 11 NYCRR 65-3.5 [b]). Where there is a timely original request for verification, but no response to the request for verification is received [*3]within 30 calendar days thereafter, or the response to the original request for verification is incomplete, then the insurer, within 10 calendar days after the expiration of that 30-day period, must follow up with a second request for verification (see 11 NYCRR 65-3.6 [b]). If there is no response to the second, or follow-up, request for verification, the time in which the insurer must decide whether to pay or deny the claim is indefinitely tolled. Thus, when a no-fault medical service provider fails to respond to the requests for verification, the 30 days in which to pay or deny the claim is tolled and does not begin to run. Accordingly, any claim for payment by the medical service provider after two timely requests for verification have been sent by the insurer subsequent to its receipt of an N-F 5 form from the medical service provider is premature, if the provider has not responded to the requests. Nothing in the rules requires a second follow-up, that is, a third request for verification.

“However, a request for verification that precedes a no-fault insurer’s receipt of the prescribed N-F 5 claim form does not trigger the tolling of the 30-day period within which an insurer must determine whether to pay or deny such a claim. The ‘UBF-1’ form referred to in 11 NYCRR 65-3.5 (g) is the predecessor of the current ‘UB-04’ form. Under 11 NYCRR 65-3.5 (g), a UBF-1/UB-04 form together with an N-F 5 form must be accepted by a no-fault insurer. The regulation does not state that a UBF-1/UB-04 form alone must be treated as the ‘functional equivalent’ of an N-F 5 form” (id. at 162-164 [citations omitted]).

Here, in reliance on Sound Shore, Mount Sinai contends that its billing through Outsource in December 2011 on a Form UB-04 did not commence the 30-day period in which New York Central was required to pay, deny, or request verification of Mount Sinai’s claim. Instead, Mount Sinai contends, the 30-day period commenced in March 2012, when Mount Sinai submitted a billing request on a Form NF-5. In effect, Mount Sinai contends, New York Central’s denial of claim in January 2012 did not deny anything; there was no claim submitted in December to deny. Finally, inasmuch as Mount Sinai established, prima facie, that New York Central did not pay, deny, or request verification of the March claim within 30 days after receiving it, New York Central had waived its defenses, so summary judgment on the complaint was required (see Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33, 41 [2013]).

New York Central, by contrast, contends that the 30-day period commenced when it received the Form UB-04 in December 2011, that it timely requested verification of the claim, and that, after it received the medical records, it timely denied the claim in January 2012. Mount Sinai could not commence the 30-day clock anew by submitting the same claim several months later (see Hospital for Joint Diseases v Allstate Ins. Co., 5 AD3d 441, 442 [2004]).

We conclude that the Supreme Court erred in denying Mount Sinai’s motion for summary judgment on the complaint and in granting New York Central’s cross motion for summary judgment dismissing the complaint. Under our decision in Sound Shore, the 30-day period for New York Central to pay or deny the claim did not begin to run until March 26, 2012, when Mount Sinai submitted the Form NF-5, which contained the information needed. Because New York Central did not pay or deny the claim within 30 days thereafter, it was precluded from raising defenses. In other words, the defective “claim” submitted in December 2011 did not start the 30-day clock, so New York Central’s denial in January 2012 was of no effect (see Mount Sinai Hosp. v Dust Tr., Inc., 117 AD3d 921, 921 [2014]).

In summary, in support of its motion for summary judgment on the complaint, Mount Sinai satisfied its prima facie burden of establishing that New York Central received its Form NF-5 in March 2012 and that payment of the no-fault benefits was overdue because the claim was neither [*4]paid nor denied within 30 days (see Westchester Med. Ctr. v Allstate Ins. Co., 114 AD3d 672, 672-673 [2014]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d at 40-41). In opposition, New York Central failed to raise a triable issue of fact (see Westchester Med. Ctr. v Allstate Ins. Co., 114 AD3d at 672-673).

Moreover, the Supreme Court should have denied New York Central’s cross motion for summary judgment dismissing the complaint. Mount Sinai’s complaint was predicated solely upon New York Central’s failure to pay or deny the March 2012 claim within 30 days of receipt. New York Central failed to establish, prima facie, that it paid or denied that claim within 30 days after receipt. Accordingly, New York Central was not entitled to summary judgment dismissing the complaint (see New York & Presbyt. Hosp. v Allstate Ins. Co., 31 AD3d 512, 513 [2006]; cf. Hospital for Joint Diseases v Allstate Ins. Co., 5 AD3d at 442).

In light of our determination, we need not address Mount Sinai’s remaining contention. Rivera, J.P., Balkin, Hinds-Radix and Maltese, JJ., concur.

[*1]

The Rybak Firm, PLLC, Brooklyn (Damin J. Toell of counsel), for appellants.

Burke, Gordon & Conway, White Plains (Philip J. Dillon of counsel), for respondent.

Order, Supreme Court, New York County (Carol R. Edmead, J.), entered on or about March 22, 2013, which, insofar as appealed from as limited by the briefs, granted so much of plaintiff’s motion for summary judgment as sought a declaration that plaintiff properly disclaimed coverage of its insured, defendant Gregory Huff (defendants Alleviation Medical Services, P.C. and Great Health Care Chiropractic P.C.’s assignor), based, inter alia, on Huff’s breach of a condition precedent to coverage under the policy, and a permanent stay of any arbitration or court hearing for no-fault benefits arising from the underlying alleged accident involving Huff, and declared, among other things, that the disclaimer is proper, unanimously affirmed, with costs.

The instant action arises out of an automobile accident that occurred on or about April 28, 2011, involving a vehicle insured by plaintiff. The vehicle’s owner and driver, defendant Gregory Huff, assigned his no-fault insurance benefits to defendant medical providers. Plaintiff commenced this action, in effect, seeking a declaration that it is not obligated to pay these no-fault benefits to defendants because, among other reasons, Huff failed to complete an examination under oath (EUO), as required by the subject insurance policy. Thus, plaintiff asserts that Huff breached a condition precedent to coverage under the policy, and defendant medical providers are not entitled to recover Huff’s no-fault benefits.

We find that Supreme Court properly granted summary judgment in plaintiff’s favor. In support of its motion, plaintiff relied primarily upon Huff’s EUO, which was corroborated by the affidavit of plaintiff’s investigator who was present at the examination. The EUO established that Huff appeared for his EUO, but departed before questions regarding the accident and his injuries had been asked. The aborted EUO of Huff, the named insured, established a prima facie case that Huff had breached a condition precedent to coverage under the policy.

In opposition, defendants do not dispute what occurred at the EUO. Instead, defendants argue that the transcript of the EUO was inadmissible. We find, however, that the EUO [*2]transcript of Huff was admissible evidence on the motion for summary judgment as it was certified by the court reporter and is considered a party admission (see Zalot v Zieba, 81 AD3d 935, 936 [2d Dept 2011], lv denied 17 NY3d 703 [2011]). Even if this were not the case, the affidavit of plaintiff’s investigator confirms that Huff did not seek another EUO, a fact the insured does not dispute. Insofar as defendants complain that plaintiff did not seek another EUO, the record demonstrates that Huff, represented by counsel, was advised of the ramifications of his refusal to continue the EUO, and confirmed that he understood.

An assignee “stands in the shoes” of an assignor and thus acquires no greater rights than its assignor (see Arena Constr. Co. v Sackaris & Sons, 282 AD2d 489 [2d Dept 2001]; see also Dilon Med. Supply Corp. v Travelers Ins. Co., 7 Misc 3d 927, 930 [Civ Ct, Kings County 2005]). Since the defense of the breach of a condition precedent to coverage under the policy may indisputably be raised by plaintiff against Huff, it is available as against defendants, who accepted assignments of no-fault benefits (see Hammelburger v Foursome Inn Corp., 54 NY2d 580, 586 [1981]; Losner v Cashline, L.P., 303 AD2d 647, 648 [2d Dept 2003]). Concur—Sweeny, J.P., Renwick, Andrias, Richter and Kapnick, JJ.

[*1]

Joseph Henig, P.C., Bellmore, N.Y., for appellant.

Bruno, Gerbino & Soriano, LLP, Melville, N.Y. (Mitchell L. Kaufman of counsel), for respondent.

In an action to recover no-fault medical payments under an insurance contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Mahon, J.), entered October 2, 2013, which denied its motion for summary judgment on the complaint.

Ordered that the order is affirmed, with costs.

The plaintiff demonstrated its prima facie entitlement to judgment as a matter of law on the complaint, in which the plaintiff sought to recover no-fault medical payments from the defendant, by tendering proof that the claim was neither paid nor denied within 30 days of the defendant’s receipt of the prescribed claim forms (see Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d 1014, 1017 [2008]; Westchester Med. Ctr. v State Farm Mut. Auto. Ins. Co., 44 AD3d 750, 752 [2007]). However, in opposition, the defendant raised a triable issue of fact as to whether it timely and properly denied the claim based on the alleged intoxication of the plaintiff’s assignor at the time of the accident by the issuance of a denial within 30 days of the receipt of additional verification it requested concerning the claim (see Westchester Med. Ctr. v Clarendon Natl. Ins. Co., 57 AD3d 659, 660 [2008]; Westchester Med. Ctr. v Progressive Cas. Ins. Co., 51 AD3d at 1017). Although, as the defendant acknowledges, some of the evidence it submitted was not in admissible form, it proffered an “acceptable excuse for [its] failure to meet the strict requirement of tender in admissible form” (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; see Merriman v Integrated Bldg. Controls, Inc., 84 AD3d 897, 899 [2011]; cf. Oddo v Edo Mar. Air, 34 AD3d 774, 775 [2006]). Accordingly, the Supreme Court properly denied the plaintiff’s motion for summary judgment on the complaint. Mastro, J.P., Chambers, Lott and Roman, JJ., concur.

[*1]

Teresa M. Spina, Woodbury, N.Y. (P. Stephanie Estevez and Jeanne M. Ortega of counsel), for appellant.

Joseph Henig, P.C., Bellmore, N.Y., for respondent.

In an action to recover no-fault benefits under two insurance contracts, the defendant appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Sher, J.), entered September 21, 2011, as, upon reargument, in effect, vacated the determination in a prior order of the same court entered June 21, 2011, denying that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action and thereupon granted that branch of the plaintiffs’ motion.

Ordered that the order entered September 21, 2011, is reversed insofar as appealed from, on the law, with costs, and, upon reargument, the determination in the order entered June 21, 2011, denying that branch of the plaintiffs’ motion which was for summary judgment on the first cause of action is adhered to.

The plaintiffs commenced this action to recover, inter alia, the amounts billed to the defendant for medical services rendered to nonparty Chetanaben Patel, who assigned her no-fault insurance benefits to the plaintiff New York University Hospital-Tisch Institute. Only the first cause of action, related to the Patel claim, is at issue here. The plaintiffs moved for summary judgment on the complaint and, in an order entered June 21, 2011, the Supreme Court denied that branch of the motion which was for summary judgment on the first cause of action. The plaintiffs moved for leave to reargue. The Supreme Court granted the plaintiffs’ motion for leave to reargue, and, upon reargument, granted that branch of their prior motion which was for summary judgment on the first cause of action. The court concluded, upon reargument, that the defendant’s peer review report was “fatally defective” because it failed to satisfy the affirmation requirements of CPLR 2106, and that, in the absence of the peer review report or any other medical evidence, the defendant failed to raise a triable issue of fact in opposition to the plaintiffs’ motion. The defendant appeals.

The plaintiffs established their prima facie entitlement to judgment as a matter of law by submitting proof demonstrating that the prescribed billing forms were mailed to and received by [*2]the defendant insurer, and that the insurer failed to either pay or deny the claim within the requisite 30-day period (see Insurance Law § 5106 [a]; 11 NYCRR 65-3.8 [a] [1]; Viviane Etienne Med. Care, P.C. v Country-Wide Ins. Co., 114 AD3d 33 [2013]; Westchester Med. Ctr. v Hereford Ins. Co., 95 AD3d 1306, 1306-1307 [2012]; NYU-Hosp. for Joint Diseases v American Intl. Group, Inc., 89 AD3d 702, 703 [2011]; Mount Sinai Hosp. v Country Wide Ins. Co., 85 AD3d 1136, 1137 [2011]).

In opposition to the plaintiffs’ prima facie showing, however, the defendant insurer raised a triable issue of fact. A defendant-insurer is required either to pay or deny a claim for no-fault benefits within 30 days of “proof of claim, which shall include verification of all of the relevant information requested” (11 NYCRR 65-3.8 [a] [1]; see Insurance Law § 5106 [a]; Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 278 [1997]; Hospital for Joint Diseases v New York Cent. Mut. Fire Ins. Co., 44 AD3d 903, 903-904 [2007]; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d 492, 493 [2006]; Nyack Hosp. v State Farm Mut. Auto. Ins. Co., 11 AD3d 664, 665 [2004]). “When a no-fault claim has been assigned to a hospital or medical provider and the hospital or medical provider sends an N-F 5 form to the no-fault insurer, the no-fault insurer’s receipt of an N-F 5 form triggers the running of the 30-day period within which the insurer has a duty to pay or to deny the claim, or to seek verification of it” (Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d 157, 163 [2013]; see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d 312, 317 [2007]). “Subsequent to the receipt of the N-F 5 form, if the insurer requires any additional information to evaluate the proof of claim, such request for verification must be made within 15 business days of the receipt of the N-F 5 form in order to toll the 30-day period” (Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d at 163; see 11 NYCRR 65-3.5 [b]; Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 317). A proper request for verification will serve to toll the 30-day statutory time period for payment of the claim (see Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 317; New York & Presbyt. Hosp. v Allstate Ins. Co., 30 AD3d at 493; Hospital for Joint Diseases v ELRAC, Inc., 11 AD3d 432, 434 [2004]). Here, the evidence submitted by the defendant demonstrated that it received the last of the responses to its requests for additional verification on December 21, 2010, at which time the 30-day period within which it was required to pay or deny the claim began to run. The defendant issued a denial of claim dated January 19, 2011, 29 days later. Thus, in opposition to the plaintiffs’ prima facie showing, the defendant raised a triable issue of fact as to whether it denied the plaintiffs’ claim within the requisite 30-day period, as tolled by its requests for additional verification (see generally Hospital for Joint Diseases v Travelers Prop. Cas. Ins. Co., 9 NY3d at 317; Sound Shore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 106 AD3d at 163; see also 11 NYCRR 65-3.5 [b]). Contrary to the Supreme Court’s determination, the defendant was not required to set forth a medical rationale in its denial of claim form or, in the absence of a written request, to furnish a copy of the peer review report, in admissible form or otherwise (see New York Univ. Hosp. Rusk Inst. v Government Empls. Ins. Co., 39 AD3d 832, 832-833 [2007]; see also A.B. Med. Servs., PLLC v Liberty Mut. Ins. Co., 39 AD3d 779, 780-781 [2007]; A.B. Med. Servs., PLLC v GEICO Cas. Ins. Co., 39 AD3d 778, 779 [2007]; 11 NYCRR 65-3.8 [b] [4]).

Accordingly, the Supreme Court, upon reargument, should have adhered to its prior determination denying that branch of the plaintiffs’ prior motion which was for summary judgment on the first cause of action. Skelos, J.P., Balkin, Dickerson and Hinds-Radix, JJ., concur.

[*1]

Blodnick Fazio & Associates, P.C., Garden City (Edward K. Blodnick of counsel), for appellants.

Kaufman Borgeest & Ryan LLP, Valhalla (Jacqueline Mandell of counsel), for respondents.

Order, Supreme Court, Bronx County (Norma Ruiz, J.), entered October 24, 2012, which granted the motions of defendants Allstate Insurance Company, Robert P. Macchia, and Mehmet F. Gokce to dismiss the complaint, and denied plaintiffs’ cross motion for summary judgment, unanimously affirmed, with costs.

Where an amended pleading is submitted in response to a pre-answer motion to dismiss, the provident course of action for the motion court is to include the amended complaint in the record on the pending motion, which should then be granted or denied based on the sufficiency of the amended pleading (see e.g. Polish Am. Immigration Relief Comm. v Relax, 172 AD2d 374, 375 [1st Dept 1991]; see also Weinstein-Korn-Miller, NY Civ Prac ¶ 3025.07 [2d ed 2011]).

Here, the amended complaint, like the original complaint, was insufficient to state a cause of action upon which relief could be granted. Plaintiffs asserted that defendant Allstate had no right to investigate whether they were fraudulently licensed under Public Health Law article 28 and therefore ineligible to receive no-fault reimbursements. Allstate plainly has that right (see e.g. State Farm Mut. Auto. Ins. Co. v Mallela, 4 NY3d 313 [2005]; One Beacon Ins. Group, LLC v Midland Med. Care, P.C., 54 AD3d 738, 740 [2d Dept 2008]). Plaintiffs also attempted to assert causes of action against Allstate’s counsel, defendants Robert P. Macchia and Mehmet P. Gokce for undertaking a legitimate investigation at Allstate’s behest. It is well settled that no [*2]such cause of action lies (Hahn v Wylie, 54 AD2d 629, 629 [1st Dept 1976]).

We have considered the plaintiffs’ remaining contentions and find them unavailing. Concur—Mazzarelli, J.P., Andrias, DeGrasse, Manzanet-Daniels and Feinman, JJ. [Prior Case History: 2012 NY Slip Op 33515(U).]