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Mercure, J.P. (1) Appeal from an order of the Supreme Court (Stein, J.), entered December 21, 2004 in Greene County, which, inter alia, granted petitioner’s application pursuant to CPLR 7511 to vacate an arbitration award, and (2) motion to dismiss appeal.

The parties are automobile insurance companies who insure, respectively, two policyholders involved in a motor vehicle accident that occurred in July 2001. After paying $50,000 in no-fault benefits, respondent filed an application for mandatory arbitration with Arbitration Forums, Inc., a company that administers no-fault arbitrations in New York (see Insurance Law § 5105). In January 2004, an arbitrator rendered a decision finding that “[respondent] (Selective) submitted proof [of] negligence against [petitioner] (Utica), 70%, comparative negligence applied.” The determination further stated that “Comp[aritive] Neg[ligence] applies, find [respondent]—30%[;] [petitioner]—70%” and awarded $35,000 to respondent. After receiving the arbitrator’s findings, petitioner commenced this CPLR article 75 proceeding seeking an order vacating the arbitrator’s determination. Respondent cross-moved for confirmation of the award. Supreme Court, finding the arbitrator’s award to be “exceedingly indefinite,” vacated the award and remanded the matter to the arbitrator to clarify her findings. [*2]Respondent did not seek a stay of the court’s order, but instead filed an appeal to this Court.

Meanwhile, the arbitrator issued an amended decision indicating that the “liability percentage was reversed,” finding respondent’s insured to have been 70% at fault and petitioner’s insured to have been 30% at fault, and reducing respondent’s award to $15,000. Upon respondent’s petition for vacatur, Supreme Court concluded that the arbitrator’s amended decision further confounded the issue. The court vacated the amended award and remanded the matter to the arbitrator for further guidance. In a second amended decision, the arbitrator again awarded respondent $15,000. Petitioner then moved to dismiss this appeal as moot, asserting that the arbitrator has now issued a definitive decision establishing liability.

It is well settled that “an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment” (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]; see Saratoga County Chamber of Commerce v Pataki, 100 NY2d 801, 810-811 [2003], cert denied 540 US 1017 [2003]). Here, it cannot be said that a determination by this Court would not affect the rights of the parties. A holding that Supreme Court erred in vacating the award would result in reinstatement of the original award. On the other hand, if the Court upholds the vacatur, the parties will be bound by the most recent amended award—subject to any right of respondent to challenge that award—which purports to reverse the percentages of liability assigned in the original award. Inasmuch as the parties’ rights and liabilities will be directly affected by our resolution of this appeal, the dispute is justiciable and petitioner’s motion is therefore denied.

Turning to the merits, we conclude that Supreme Court properly vacated the initial arbitration award. Where arbitration is compulsory, “the standard for judicial review of the award is more exacting than in voluntary arbitration” (Matter of Furstenberg [Aetna Cas. & Sur. Co.—Allstate Ins. Co.], 49 NY2d 757, 758 [1980]) and “[t]o be upheld, an award . . . 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]). Particularly relevant here, an award may be vacated where the arbitrator “so imperfectly executed it that a final and definite award upon the subject matter submitted was not made” (CPLR 7511 [b] [1] [iii]; see Matter of Meisels v Uhr, 79 NY2d 526, 536 [1992]).

As Supreme Court explained, the original award is internally inconsistent because it states that respondent was 70% negligent, yet apportions only 30% of fault against respondent. Further confusion was created by the arbitrator’s incorrect statement that respondent’s insured was cited for a traffic violation at the scene, whereas it was in fact petitioner’s insured who was cited. Finally, we note that in seeking to vacate the first amended award—which suffered from many of the same infirmities as the original award—respondent itself characterized the award as “ambiguous and indefinite and as written, fail[ing] to present a coherent, rational determination.” Under these circumstances, we agree with Supreme Court that vacatur of the original award was required.

Respondent’s remaining contentions are either academic, unsupported by the record or otherwise lacking in merit.

Crew III, Peters, Mugglin and Kane, JJ., concur. [*3]Ordered that the motion is denied, without costs. Ordered that the order is affirmed, without costs.

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Cardona, P.J. Appeal from an order of the Supreme Court (Malone, Jr., J.), entered June 23, 2005 in Albany County, which, inter alia, granted plaintiff’s motion to vacate an order dismissing the complaint.

In this action for payment of no-fault benefits for medical expenses arising from injuries allegedly sustained in a motor vehicle accident, defendant moved for dismissal of the complaint, pursuant to CPLR 3126, claiming plaintiff’s willful failure to respond to certain discovery demands. Upon plaintiff’s default in responding to that motion, Supreme Court dismissed the complaint in February 2005. Thereafter, plaintiff moved to vacate that order. Supreme Court (1) granted plaintiff’s request, finding a reasonable excuse for the default in responding to the motion and a potentially meritorious claim, and (2) upon consideration of the merits of the underlying motion, taking into account plaintiff’s response, denied defendant’s motion to dismiss the complaint pursuant to CPLR 3126. This appeal by defendant ensued.

The sole issue raised by defendant on this appeal is its contention that Supreme Court erred in providing relief to plaintiff because she failed to appeal the February 2005 order dismissing the complaint pursuant to CPLR 3126 and, therefore, a motion to vacate pursuant to CPLR 5015 (a) (1) was not appropriate. In our view, the court proceeded properly under the particular circumstances herein. While there is no question that, in a properly contested motion[*2]“predicated upon CPLR 3126, an appeal of [the resulting] order or judgment is the proper and sole remedy for the defaulting party” (Pinapati v Pagadala, 244 AD2d 676, 677 [1997]; see Schwenk v St. Peter’s Hosp. of City of Albany, 215 AD2d 906, 908 [1995], lv dismissed 86 NY2d 838 [1995]), here, the default that plaintiff sought to vacate was her default in opposing defendant’s motion to preclude in the first instance. Therefore, Supreme Court did not err in entertaining her motion to vacate (see generally Sik Bun Yuen v Huang, 18 AD3d 460 [2005]; State Empls. Fed. Credit Union v Starke, 274 AD2d 656, 657-658 [2000]; 10 Carmody-Wait 2d § 70:33 [2005]).

Mercure, Peters, Carpinello and Rose, JJ., concur. Ordered that the order is affirmed, with costs.

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Cardona, P.J. Appeal from an order of the Supreme Court (Connor, J.), entered October 15, 2004 in Columbia County, which granted petitioner’s application pursuant to Workers’ Compensation Law § 29 (5) for judicial approval, nunc pro tunc, of a personal injury settlement.

In January 1996, petitioner sustained injuries in a motor vehicle accident while working for her employer. Petitioner received workers’ compensation benefits from her employer’s insurance carrier, respondent CNA Insurance Companies (hereinafter respondent), as well as first-party benefits pursuant to the no-fault provisions of the Insurance Law. Thereafter, petitioner commenced a third-party negligence action against the driver of the other motor vehicle, which she settled for $32,500. However, petitioner failed to obtain consent of the settlement from respondent, as required pursuant to Workers’ Compensation Law § 29 (5). Petitioner thereafter commenced this proceeding seeking, among other things, judicial approval, nunc pro tunc, of the third-party settlement. Supreme Court approved the settlement, however, this Court reversed on the basis that the supporting documentation was insufficient and we remitted the matter for further proceedings (306 AD2d 677, 678-679 [2003]). Following [*2]petitioner’s submission of additional documentation, petitioner again sought judicial approval of the third-party settlement, which Supreme Court granted, prompting this appeal.

Supreme Court reviewed all the relevant factors in exercising its discretionary authority to grant petitioner’s request. Notably, petitioner submitted evidence which suggested that it would have been difficult to prove that she had suffered a serious injury as a result of the accident. Furthermore, it is apparent that respondent suffered no prejudice from petitioner’s delay in seeking approval (see Neblett v Davis, 260 AD2d 559, 560 [1999]). We note that an application for a nunc pro tunc order approving a third-party settlement must normally be made within three months of the settlement date (see Workers’ Compensation Law § 29 [5]). Under all the circumstances herein, we, however, do not conclude that Supreme Court abused its broad discretion in approving this settlement (see Severino v Liberty Mut. Ins. Co., 238 AD2d 837, 838 [1997]; Borrowman v Insurance Co. of N. Am., 198 AD2d 891 [1993]).

Crew III, Spain, Mugglin and Lahtinen, JJ., concur. Ordered that the order is affirmed, with costs.

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Mugglin, J. Appeal from an order of the Supreme Court (Hummel, J.), entered September 14, 2004 in Columbia County, which, inter alia, denied petitioner’s application pursuant to CPLR 7503 to stay arbitration between the parties.

Petitioner argues that respondents failed to comply with a condition precedent to supplemental uninsured motorist (hereinafter SUM) coverage when they allegedly did not return a “Proof of Claim” form as soon as practicable. On June 8, 2003, 16-year-old respondent Deanna Delaney sustained serious injuries (including fractures requiring surgery) while a passenger in a vehicle that was involved in a single vehicle accident in Tennessee. Her mother, respondent Penny Mackey, was an insured under a policy issued by petitioner that included SUM coverage of $25,000 per person, $50,000 per accident. By letter dated July 1, 2003, respondents’ attorney notified petitioner of a no-fault claim and a “potential uninsured/underinsured motorist claim” as a result of the accident. Respondents’ attorney sent another letter dated July 15, 2003 enclosing a police report of the accident and indicating no coverage existed from any other policy in the household or from the vehicle involved in the accident.

In January 2004, respondents’ attorney informed petitioner that a SUM claim would be pursued. Petitioner responded by letter dated January 8, 2004 in which it sought additional information and enclosed a “Proof of Claim” form that it requested the insured complete and return to its office. Copies of Delaney’s medical records were sent to petitioner in February 2004. On March 29, 2004, however, petitioner disclaimed coverage because it had not yet received the completed “Proof of Claim” form. The form, which ostensibly had been misplaced, was sent to petitioner on April 14, 2004, but petitioner stood by its disclaimer. In June 2004, respondents served a notice of arbitration regarding the SUM claim. Petitioner sought a permanent stay of the arbitration. Supreme Court denied the petition and this appeal ensued.

We affirm. The Court of Appeals has recently held that “where an insured previously gives timely notice of the accident, the carrier must establish that it is prejudiced by a late notice of SUM claim before it may properly disclaim coverage” (Rekemeyer v State Farm Mut. Auto. Ins. Co., 4 NY3d 468, 476 [2005]; see Matter of Brandon [Nationwide Mut. Ins. Co.], 97 NY2d 491, 496-497 [2002]; cf. Argo Corp. v Greater N.Y. Mut. Ins. Co., 4 NY3d 332, 339-340 [2005]). The rationale in Rekemeyer applies here, as respondents’ attorney supplied prompt written notice of the accident, made a claim for no-fault benefits and indicated that SUM coverage was implicated. Written notice regarding a SUM claim was repeated at least twice over the ensuing six months. Respondents forwarded to petitioner the police accident report of the accident as well as the pertinent medical records. Petitioner does not deny receiving any of these various letters and documents from respondents. Petitioner failed to show any prejudice and, under the circumstances of this case, should not be permitted to disclaim SUM coverage.

Crew III, J.P., Peters and Spain, JJ., concur. Ordered that the order is affirmed, with costs.

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

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

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

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

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

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

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

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

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

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

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

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

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Mugglin, J. Appeal from an order of the Supreme Court (Demarest, J.), entered January 22, 2004 in St. Lawrence County, which, inter alia, granted defendant’s cross motion for summary judgment dismissing the complaint.

On August 12, 2000, plaintiff suffered an injury to his right knee when he was struck by an automobile driven by defendant’s insured. Nine days later, on his application for no-fault benefits, plaintiff correctly reported that he was not employed, had lost no time from work and was not receiving unemployment insurance benefits. Plaintiff did report, however, that he had lost time looking for work. Plaintiff’s subsequent claim for lost wages was denied by defendant on December 15, 2000 and, in January 2001, plaintiff sued for the lost-wage claim.

In March 2001, plaintiff took an examination for entry into the State Police. He was notified in June 2001 that he had passed. Because plaintiff’s doctor was fearful that plaintiff could not pass the State Police physical exam, plaintiff sought deferment. When that was granted, plaintiff had his knee surgically repaired and, after a period of rehabilitation, passed the physical exam in April 2003 and entered the State Police Academy.

Asserting that his injury delayed his employment in the State Police and his expected earnings as a trooper exceeded the actual salary he earned during the period, plaintiff sought [*2]summary judgment for approximately $24,000 on his lost-wage claim. Defendant cross-moved for summary judgment dismissing the claim on the basis that it was too speculative. Supreme Court granted the cross motion and plaintiff appeals.

Plaintiff argues that Insurance Law § 5102 (a) (2) as supplemented by 11 NYCRR 65-3.16 (b) (3) mandates reversal. We disagree and affirm. Insurance Law § 5102 (a) (2) provides that an individual who makes a claim under the no-fault provision be compensated for “[l]oss of earnings from work which the person would have performed had he not been injured” (Kurcsics v Merchants Mut. Ins. Co., 49 NY2d 451, 458 [1980]). Moreover, 11 NYCRR 65-3.16 (b) (3), in interpreting the statute, states that the “[l]oss of earnings from work shall not necessarily be limited to the applicant’s level of earnings at the time of the accident, but may also include demonstrated future earnings reasonably projected.” However, it is clear that the intent of the Legislature is “to compensate the accident victim for the earnings he or she would have, in fact, realized” at the time of the accident (Kurcsics v Merchants Mut. Ins. Co., supra at 457).

It is our view that the language of both the statute and the regulation contemplates a degree of certainty in the calculation of lost wages and they apply to reimburse a claimant for wages actually lost from employment engaged in at the time of the accident and those lost wages from that employment can be increased if the claimant can demonstrate a reasonable projection that his or her future earnings from said employment will increase (see Herman v Government Empls. Ins. Co., 115 Misc 2d 146, 149 [1982]). Here, that degree of certainty is entirely lacking. Plaintiff’s entry into the State Police Academy and its deferral as a result of the knee injury could not have been reasonably contemplated by either party at the time of the accident, rendering his claim entirely speculative.

Crew III, J.P., Carpinello, Rose and Lahtinen, JJ., concur. Ordered that the order is affirmed, with costs. [See 2 Misc 3d 945.]

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Mercure, J.P. Appeal from an order of the Supreme Court (Reilly, Jr., J.), entered December 5, 2003 in Schenectady County, which granted petitioner’s application pursuant to CPLR 7503 to stay arbitration between the parties.

After allegedly sustaining injuries in a May 1998 automobile accident, respondent Geraldine Celebucki filed a claim for no-fault insurance benefits with petitioner in July 1998. Celebucki thereafter notified petitioner of her intent to file an additional claim for supplementary underinsured motorist (hereinafter SUM) coverage pursuant to the terms of her existing automobile insurance policy with petitioner. In February 2002, petitioner disclaimed coverage of the SUM claim on the ground that Celebucki had failed to notify it of her intent to seek such benefits until November 2001, approximately 3½ years after the date of the accident. Contending that petitioner had actually received such notice in August 1998, respondents filed a demand for arbitration. Supreme Court granted petitioner’s subsequent CPLR 7503 petition to permanently stay arbitration, prompting this appeal.

We affirm. In our view, Supreme Court properly held that Celebucki failed to provide petitioner with notice of her SUM claim “[a]s soon as practicable,” a requirement of her SUM [*2]policy (see generally Matter of Metropolitan Prop. & Cas. Ins. Co. v Mancuso, 93 NY2d 487 [1999]). Although respondents contend that such notice was provided by letter from respondents’ counsel in August 1998, petitioner presented the affidavits of a claims representative who stated that no such letter was located in Celebucki’s file. Indeed, there is no evidence in the record, apart from the unsubstantiated assertion of respondents’ counsel that he “did cause to execute and forward” said letter, to validate respondents’ claim. Notably, respondents failed to offer any proof of regular mailing procedures and office practices “geared to ensure the proper addressing or mailing of this letter,” thus entitling them to a rebuttable presumption of receipt by petitioner (Matter of Phoenix Ins. Co. v Tasch, 306 AD2d 288, 288 [2003]; see Nassau Ins. Co. v Murray, 46 NY2d 828, 829-830 [1978]). Accordingly, we agree with Supreme Court that timely written notice of the SUM claim was never provided and arbitration was properly stayed.

Spain, Mugglin, Lahtinen and Kane, JJ., concur. Ordered that the order is affirmed, without costs.

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Mugglin, J. Appeal from an order of the Supreme Court (Kavanagh, J.), entered April 21, 2003 in Ulster County, which granted petitioner’s application pursuant to Workers’ Compensation Law § 29 (5) for judicial approval, nunc pro tunc, of a personal injury settlement.

After sustaining injuries in a May 1990 work-related automobile accident, petitioner applied for and was awarded workers’ compensation benefits. In November 1992, respondent, who had commenced payment of workers’ compensation benefits shortly after petitioner’s accident, notified petitioner that it was reserving its claim to a continuing lien on any recovery for injuries or damages arising out of the May 1990 accident not constituting payments in lieu of first party no-fault benefits (see Workers’ Compensation Law § 29 [1-a]; Insurance Law § 5104 [a]). Respondent further informed petitioner of its obligation to obtain respondent’s written consent for any settlement or compromise of a lawsuit brought in connection with the automobile accident (see Workers’ Compensation Law § 29 [5]). Petitioner had, in fact, commenced a third-party action and ultimately settled the matter for $60,000 pursuant to the terms of a July 1993 agreement. It is undisputed that no attempt was made by petitioner to obtain respondent’s consent prior to executing that agreement. Citing petitioner’s failure in that regard, respondent suspended the payment of benefits in January 1994 and, thereafter, refused petitioner’s July 1994 [*2]request for retroactive consent of the settlement agreement. After affording petitioner the opportunity to provide evidence that consent was obtained, the Workers’ Compensation Board approved the termination of further benefit awards and closed the case in May 1995. In November 2002, some nine years after the execution of the July 1993 settlement agreement, petitioner sought judicial approval of the settlement nunc pro tunc. Supreme Court granted petitioner’s application, prompting this appeal by respondent.

Workers Compensation Law § 29 (5) is clear “[that] an employee must obtain the written approval of the employer or its workers’ compensation carrier prior to any settlement of a third-party action” (Matter of Bernthon v Utica Mut. Ins. Co., 279 AD2d 728, 728 [2001]; see Matter of Johnson v Buffalo & Erie County Private Indus. Council, 84 NY2d 13, 19 [1994]). However, an employee also has the option of seeking judicial approval of the settlement from the court in which the third-party action is pending within three months after the case has been settled (see Matter of Stiffen v CNA Ins. Cos., 282 AD2d 991, 992 [2001], lv denied 97 NY2d 612 [2002]). Where, as here, a petitioner has failed to do either, such petitioner is barred from receiving future workers’ compensation benefits unless he or she can demonstrate that (1) the delay in submitting the application was not the result of the petitioner’s fault or neglect, (2) the settlement is reasonable and (3) the carrier was not prejudiced by the delay (see id. at 992; Matter of Wilbur v Utica Mut. Co., 228 AD2d 928, 929 [1996]). A reviewing court should also consider the length of the delay as an additional relevant factor (see Matter of Rifenburgh v James, 297 AD2d 901, 902 [2002]; Dennison v Pinke, 211 AD2d 853, 854 [1995]).

Here, the nine-year delay between the execution of the settlement agreement and petitioner’s application for judicial approval thereof was inordinate. There is no dispute that, as early as November 1992, petitioner was fully aware of respondent’s intention to assert its right to impose a workers’ compensation lien and require written consent of any third-party settlement agreement. Respondent’s intention to avail itself of this statutory remedy was further emphasized by the 1994-1995 proceedings before the Workers’ Compensation Board and in respondent’s January 1995 correspondence denying petitioner’s request for retroactive consent. Unfortunately, even in light of these circumstances, petitioner did not seek judicial approval of the settlement agreement until 2002.

Even assuming that the settlement was reasonable and respondent’s claim of prejudice not significant, in light of the above uncontroverted facts, we find unpersuasive petitioner’s attempts to characterize the delay as excusable. Under the circumstances, we must conclude that Supreme Court’s grant of petitioner’s application constituted an improvident exercise of discretion and reversal is required (see Scannell v Karlin, 252 AD2d 552 [1998], lv denied 93 NY2d 805 [1999]).

Cardona, P.J., Crew III, Peters and Rose, JJ., concur. Ordered that the order is reversed, on the law, without costs, and application denied.

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Mercure, J.P. Appeals from an order and an amended order of the Supreme Court (Kavanagh, J.), entered January 2, 2003 in Ulster County, upon a decision of the court in favor of plaintiff.

In September 1999, plaintiff was injured in an automobile accident while driving a car insured by defendant. Plaintiff suffered an injury to her right shoulder for which defendant paid no-fault benefits, including medical expenses, household help reimbursement and lost wages, through March 31, 2000. Thereafter, defendant denied further benefits, asserting that an independent medical examination demonstrated that plaintiff was no longer injured as a result of the accident.

Plaintiff then commenced this action seeking a declaration that defendant was obligated to continue paying benefits in an amount not to exceed $50,000. Based upon the parties’ submitted affidavits, Supreme Court determined that plaintiff was completely disabled from the date of the accident through December 2000 and was thereafter partially disabled. The court directed defendant to pay plaintiff $4,225 plus interest to cover expenses from the period of April 1, 2000 to September 16, 2000, plus lost wages. Defendant appeals, asserting that Supreme Court erred in concluding that plaintiff’s disability continued beyond March 2000. We disagree.

Inasmuch as Supreme Court’s decision was rendered after a nonjury trial, we ” ‘independently consider the probative weight of the evidence and the inferences to be drawn therefrom’ ” upon review (Glencoe Leather Corp. v Parillo, 285 AD2d 891, 891 [2001], quoting Jump v Jump, 268 AD2d 709, 710 [2000]). While we normally afford deference to a trial court’s determination regarding witness credibility, such deference is not warranted here because the determination was made upon submitted affidavits (see Bauer v Goodrich & Sherwood Assoc., 304 AD2d 957, 958 [2003]). Nevertheless, we agree with Supreme Court that plaintiff established a continuing disability beyond March 2000.

Plaintiff presented an affirmation from her treating physician, Andrew Dubin, indicating that he diagnosed her with “right upper extremity brachial plexopathy” which was caused by the automobile accident and exacerbated a preexisting condition, disabling her. Dubin stated in his affirmation and in prescription notes that plaintiff required on-going household assistance, initially could not work and, from December 8, 2000, was restricted to part-time employment. Dubin noted in an April 2000 letter that nerve studies confirmed his brachial plexopathy diagnosis. While notes from plaintiff’s surgeon, William Levine, indicated continuing improvements in her range of motion and eventual resolution of the brachial plexopathy, Levine also recommended that she stay out of work initially and then return on a graduated basis beginning in December 2000.

In opposition, defendant submitted an affidavit and report of physician Norman Heyman concluding, based on a March 2000 independent medical examination, that plaintiff was not disabled but had “voluntarily sacrificed function and range of motion for relief of pain and demonstration of decreased . . . motion.” Heyman opined that further treatment would not impact plaintiff’s condition and that there was no need for household help and other services or additional diagnostic tests. We note that this evidence is undercut by a subsequent October 2000 letter from Mary Godesky, a physician who examined plaintiff on behalf of Allstate Insurance Company, the insurance carrier in the personal injury action arising out of the accident. Godesky determined that plaintiff had sustained a contusion of the right shoulder in the accident, which aggravated a preexisting condition and continued to limit plaintiff’s range of motion. Godesky recommended continuing physical therapy. Given Godesky’s letter and the affirmation and notes of plaintiff’s doctors, we agree with Supreme Court that defendant improperly denied plaintiff benefits after March 2000.

We further conclude that Supreme Court correctly awarded plaintiff first-party benefits in the form of $25 per day plus interest for housekeeping expenses, as reasonable and necessary expenses, through September 16, 2000, or one year from the date of the accident (see Insurance Law § 5102 [a] [3]; § 5106 [a]). We agree with defendant, however, that Supreme Court erred in determining that plaintiff demonstrated that her income prior to the accident was $450 per week. In connection with her demand for payment from defendant, plaintiff submitted a verification of self-employment income form indicating that she spent $240 per week on substitute services (see 11 NYCRR 65.15 [g] [8]). Our review of the record reveals that of the other prescribed forms listed in the applicable regulation (see 11 NYCRR 65.15 [c] [3]), plaintiff submitted only an application for motor vehicle no-fault benefits in demanding loss of wages. On that form, plaintiff claimed that her average weekly earnings were $450. However, the verification of self-employment income form—in which plaintiff claimed $240 per week for substitute services—is the proper form for determining plaintiff’s loss (see 11 NYCRR 65.15 [g] [8]) and a claim for substitute services is primary in determining the loss of earnings benefit where an employee claims both substitute services and loss of earnings (see 11 NYCRR 65.15 [o] [2] [x] [b]). Although the verification of self-employment income form also includes a place for an applicant to set forth net loss of earnings in addition to the cost of substitute services, plaintiff failed to properly include on that form such a loss of earnings. Thus, the $240 figure listed on the verification of self-employment income form must be used in determining plaintiff’s loss.

Accordingly, we conclude that plaintiff is entitled to 80% of her $240 weekly salary from September 17, 1999 until December 8, 2000 and, thereafter, to 80% of half her weekly salary to reimburse her for the time she was required to work four-hour days, together with interest (see Insurance Law § 5102 [b] [1]; § 5106 [a]) and subject to the $50,000 statutory cap on all basic economic loss and three-year limitation on recovery of lost wages (see Insurance Law § 5102 [a]; Normile v Allstate Ins. Co., 87 AD2d 721, 722 [1982], affd on op below 60 NY2d 1003 [1983]). Because the record is unclear regarding whether plaintiff has already been reimbursed for any of her lost wages or other basic economic loss, we remit the matter for a recalculation of the amount of first-party benefits to which plaintiff is entitled and for a calculation of the amount of counsel fees due, up to the limit set forth in the applicable regulation (see 11 NYCRR 65.17 [b] [6]).

Spain, Carpinello, Mugglin and Lahtinen, JJ., concur. Ordered that the order and amended order are modified, on the law and the facts, without costs, by reversing so much thereof as calculated plaintiff’s entitlement to loss of wage benefits; matter remitted to the Supreme Court for further proceedings not inconsistent with this Court’s decision; and, as so modified, affirmed.