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July 7, 2005

Rockaway Blvd. Med. P.C. v Progressive Ins. (2005 NY Slip Op 25278)

https://www.beynensonlaw.com/case-law/rockaway-blvd-med-p-c-v-progressive-ins-2005-ny-slip-op-25278/

Court
Appellate Term, Second Department
Decided
July 7, 2005
Citation
2005 NY Slip Op 25278 · 9 Misc 3d 52
Posture
Summary judgment
Outcome
Split result
Earlier history
Appeal from Rockaway Blvd. Med. P.C. v Progressive Ins. (2004 NY Slip Op 24184) (Reversed)
Later treatment
Declined to follow in 1, contrasted (cf., but see) in 1 and followed in 13 later decisions (see Cited by)
Issues
Provider's prima facie case Assignments and standing Verification requests
Legal questions
Claimant's prima facie case on motions (see the maps)
Cite as
Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52 (App Term, 2d Dept 2005)

Posture, outcome, issues and treatment by other decisions are Beynenson Law’s classification. Treatment labels are assigned by a language model reading the citing decision; negative and appeal-history labels are checked by a second reader.

Summary

Editorial summary by Beynenson Law, not part of the court’s decision.

A provider's omission of its relationship with the treating physician from claim forms does not defeat its prima facie case. The Appellate Term, Second Department, reversed and granted the billing provider partial summary judgment, remanding for statutory interest and attorney's fees. Although 11 NYCRR 65.15 (j) (1), now 11 NYCRR 65-3.11 (a), bars direct payment for independent contractors' services, the insurer neither asserted nor proved that defense. Without proper verification and timely denial, it waived objections to the forms' adequacy. An assignor's signature required no authentication, and failure to seek verification or deny on that ground also waived that objection. The other provider's appeal was dismissed because it raised no issue.

Reported in New York Official Reports at Rockaway Blvd. Med. P.C. v Progressive Ins. (2005 NY Slip Op 25278)

Rockaway Blvd. Med. P.C. v Progressive Ins.
2005 NY Slip Op 25278 [9 Misc 3d 52]
Accepted for Miscellaneous Reports Publication
AT2
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, October 26, 2005

[*1]

Rockaway Boulevard Medical P.C., Doing Business as Queens Diagnostic Center, et al., Appellants,
v
Progressive Insurance, Respondent.

Supreme Court, Appellate Term, Second Department, July 7, 2005

Rockaway Blvd. Med. P.C. v Progressive Ins., 4 Misc 3d 444, reversed.

APPEARANCES OF COUNSEL

Amos Weinberg, Great Neck, for appellants. Freiberg & Peck, LLP, New York City (Yilo J. Kang of counsel), for respondent.

{**9 Misc 3d at 53} OPINION OF THE COURT

Memorandum.

Order unanimously reversed without costs, motion for partial summary judgment by plaintiff Rockaway Boulevard Medical P.C., doing business as Queens Diagnostic Center, granted and matter remanded to the court below for a calculation of statutory interest and attorney’s fees thereon.

Appeal by plaintiff Jamil M. Abraham M.D. P.C., doing business as Park Health Center, unanimously dismissed.

In this action to recover first-party no-fault benefits, plaintiff Rockaway Boulevard Medical P.C., doing business as Queens Diagnostic Center, established a prima facie entitlement to partial summary judgment in the sum of $1,791.73 for medical services rendered to its assignor, by proof that it submitted the claims, setting forth the fact and the amount of the loss sustained, and that payment of no-fault benefits was overdue (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]; A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. [*2]Co., 4 Misc 3d 86 [App Term, 2d & 11th Jud Dists 2004]; Amaze Med. Supply v Eagle Ins. Co., 2 Misc 3d 128[A], 2003 NY Slip Op 51701[U] [App Term, 2d & 11th Jud Dists 2003]). In opposition to plaintiff’s motion, defendant challenged the sufficiency of plaintiff’s prima facie showing on the ground that plaintiff’s claim forms were not proper verification claim forms. As the court below noted, while NF-3 claim forms contain an entry calling for the disclosure of the relationship between the billing provider and the treating provider, the generic claim forms submitted by plaintiff, which identified it as the billing provider and the treating physician as Dr. Myung Choi, do not contain such an entry, and do not otherwise indicate the relationship between the billing and treating providers. The court determined that pursuant to 11 NYCRR 65.15 (j) (1), if the treating provider was an employee of the billing provider, then the billing provider would be entitled to recover no-fault benefits, but that if the treating provider was an independent contractor, the billing provider would not be entitled to direct{**9 Misc 3d at 54} payment, since it did not provide the medical services. The court then held that in the absence of information disclosing the relationship between the billing provider and the treating physician, plaintiff did not submit a proper proof of claim, and hence failed to establish a prima facie case of entitlement to payment of no-fault benefits.

We note initially that the court below properly determined that a billing provider may not recover no-fault benefits where the services were rendered by an independent contractor. The applicable insurance regulations governing “direct payments” of no-fault benefits by the insurer provide that “an insurer shall pay benefits . . . directly to the applicant or . . . upon assignment by the applicant . . . [to] the providers of services” (11 NYCRR 65.15 [j] [1], now 11 NYCRR 65-3.11 [a]). Pursuant to 11 NYCRR 65.15 (j) (1), a provider’s entitlement to recovery of no-fault benefits directly from the insurer is contingent upon an assignment of such benefits, and the assignment must be made to the “providers of services.” The section further circumscribes the assignability of no-fault benefits to an assignment made “by the applicant” to the providers of services. There is no authorization under this section, or elsewhere in the insurance regulations, entitling the assignment of no-fault benefits by a provider.

Accordingly, where a billing provider seeks to recover no-fault benefits for services which were not rendered by it or its employees, but rather by a treating provider who is an independent contractor, it is not a “provider” of the medical services rendered within the meaning of 11 NYCRR 65.15 (j) (1) (now 11 NYCRR 65-3.11 [a]) and is therefore not entitled to recover “direct payment” of assigned no-fault benefits from the defendant insurer (A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 8 Misc 3d 132[A], 2005 NY Slip Op 51111[U] [App Term, 2d & 11th Jud Dists, Mar. 1, 2005]). A defense that a plaintiff in an assigned first-party no-fault action may not maintain the action because it is not a “provider” within the meaning of the insurance regulations, and hence that no-fault benefits are not assignable to it, is nonwaivable and not subject to the preclusion rule (see Matter of Medical Socy. of State of N.Y. v Serio, 100 NY2d 854 [2003] [transportation charges are no longer assignable under the revised regulations [*3]effective April 5, 2002]).

In the instant case, the plaintiff’s claim forms do not disclose the relationship between the billing provider and treating physician{**9 Misc 3d at 55} (cf. A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co., 8 Misc 3d 132[A], 2005 NY Slip Op 51111[U] [2005], supra). However, contrary to the lower court’s determination, said omission does not defeat plaintiff’s prima facie showing. In opposition to plaintiff’s motion, defendant did not assert the nonwaivable defense that the services were provided by an independent contractor, and that plaintiff was therefore not a “provider” under 11 NYCRR 65.15 (j) (1). Rather, defendant’s defense was predicated merely on the insufficiency of the plaintiff’s claim forms without asserting and establishing by proof in admissible form that the status of the treating provider was in fact that of an independent contractor, a fact which could have been ascertained by means of the verification process. In the absence of proof that defendant sought proper verification of the alleged deficiencies in the claim forms and that it timely denied the claims on this ground, it has waived any objections pertaining to the adequacy of the claim forms (see Montefiore Med. Ctr. v New York Cent. Mut. Fire Ins. Co., 9 AD3d 354 [2004]; New York Hosp. Med. Ctr. of Queens v AIU Ins. Co., 8 AD3d 456 [2004]; New York & Presbyt. Hosp. v American Tr. Ins. Co., 287 AD2d 699 [2001]; Mount Sinai Hosp. v Triboro Coach, 263 AD2d 11 [1999]; St. Clare’s Hosp. v Allstate Ins. Co., 215 AD2d 641 [1995]; St. Clare’s Hosp. v Allcity Ins. Co., 201 AD2d 718 [1994]). Accordingly, upon the record before us, we disagree with the determination of the court below that the omitted information in plaintiff’s claim forms warrants a denial of its motion for summary judgment.

Defendant’s remaining argument, namely, that plaintiff failed to produce an authenticated assignment form, is without merit. The lack of authentication of an assignor’s signature, in and of itself, does not constitute a defect in the absence of any statutory and regulatory requirement for the same (A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co., 6 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2004]). Even assuming arguendo that a lack of authentication constitutes a cognizable defect, defendant’s failure to seek verification of the assignments, or to allege such deficiency in the assignments in its denial of claim forms, constitutes a waiver of any defenses with respect thereto (see id; New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co., 8 AD3d 640 [2004]; Presbyterian Hosp. in City of N.Y. v Aetna Cas. & Sur. Co., 233 AD2d 433 [1996]; Park Health Ctr. v Eveready Ins. Co., 2001 NY Slip Op 40665[U] [App Term, 2d & 11th Jud Dists 2001]).{**9 Misc 3d at 56}

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

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

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

Claimant's prima facie case on motions

Open the full map

On summary judgment or another pretrial motion, what must a no-fault claimant show to establish its prima facie case?

This decision: Claimant's proof held to make out its prima facie case

Held the omission of the billing-treating provider relationship from generic claim forms did not defeat the provider's prima facie showing, since the insurer waived claim-form objections by not seeking verification or timely denying.

  • Court of AppealsCt App 2
  • Appellate DivisionApp Div 80
  • Appellate TermApp Term 843
  • Trial courtsTrial 138
2015, Court of Appeals: 1 decision (1 Proof sufficient)2007, Court of Appeals: 1 decision (1 Proof sufficient)2022, Appellate Division: 1 decision (1 Proof sufficient)2019, Appellate Division: 1 decision (1 Proof sufficient)2014, Appellate Division: 10 decisions (9 Proof sufficient, 1 Overdue not shown)2013, Appellate Division: 2 decisions (2 Proof sufficient)2012, Appellate Division: 2 decisions (2 Proof sufficient)2011, Appellate Division: 11 decisions (11 Proof sufficient)2010, Appellate Division: 3 decisions (2 Proof sufficient, 1 Overdue not shown)2009, Appellate Division: 3 decisions (2 Proof sufficient, 1 Other element missing)2008, Appellate Division: 8 decisions (6 Proof sufficient, 1 Overdue not shown, 1 Business-record foundation lacking)2007, Appellate Division: 15 decisions (12 Proof sufficient, 2 Mailing/receipt not shown, 1 Overdue not shown)2006, Appellate Division: 5 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 1 Other element missing)2005, Appellate Division: 5 decisions (5 Proof sufficient)2004, Appellate Division: 11 decisions (10 Proof sufficient, 1 Overdue not shown)2026, Appellate Division: 1 decision (1 Proof sufficient)2003, Appellate Division: 2 decisions (1 Proof sufficient, 1 Overdue not shown)2022, Appellate Term: 14 decisions (2 Mailing/receipt not shown, 12 Overdue not shown)2021, Appellate Term: 5 decisions (1 Proof sufficient, 4 Overdue not shown)2020, Appellate Term: 13 decisions (13 Overdue not shown)2019, Appellate Term: 23 decisions (22 Overdue not shown, 1 Other element missing)2018, Appellate Term: 26 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 22 Overdue not shown)2017, Appellate Term: 38 decisions (3 Proof sufficient, 1 Mailing/receipt not shown, 34 Overdue not shown)2016, Appellate Term: 41 decisions (7 Proof sufficient, 34 Overdue not shown)2015, Appellate Term: 44 decisions (12 Proof sufficient, 1 Mailing/receipt not shown, 30 Overdue not shown, 1 Business-record foundation lacking)2014, Appellate Term: 22 decisions (10 Proof sufficient, 12 Overdue not shown)2013, Appellate Term: 34 decisions (17 Proof sufficient, 11 Overdue not shown, 6 Business-record foundation lacking)2012, Appellate Term: 32 decisions (3 Proof sufficient, 2 Mailing/receipt not shown, 11 Overdue not shown, 16 Business-record foundation lacking)2011, Appellate Term: 29 decisions (6 Proof sufficient, 1 Mailing/receipt not shown, 13 Overdue not shown, 9 Business-record foundation lacking)2010, Appellate Term: 36 decisions (22 Proof sufficient, 3 Mailing/receipt not shown, 10 Business-record foundation lacking, 1 Other element missing)2009, Appellate Term: 52 decisions (28 Proof sufficient, 3 Mailing/receipt not shown, 21 Business-record foundation lacking)2008, Appellate Term: 49 decisions (16 Proof sufficient, 1 Mailing/receipt not shown, 32 Business-record foundation lacking)2007, Appellate Term: 104 decisions (8 Proof sufficient, 2 Mailing/receipt not shown, 94 Business-record foundation lacking)2006, Appellate Term: 112 decisions (76 Proof sufficient, 26 Mailing/receipt not shown, 1 Overdue not shown, 6 Business-record foundation lacking, 3 Other element missing)2005, Appellate Term: 90 decisions (84 Proof sufficient, 5 Mailing/receipt not shown, 1 Overdue not shown)2004, Appellate Term: 57 decisions (43 Proof sufficient, 10 Mailing/receipt not shown, 4 Other element missing)2003, Appellate Term: 7 decisions (7 Proof sufficient)2023, Appellate Term: 3 decisions (3 Overdue not shown)2024, Appellate Term: 7 decisions (1 Mailing/receipt not shown, 6 Overdue not shown)2025, Appellate Term: 3 decisions (1 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown)2026, Appellate Term: 2 decisions (2 Mailing/receipt not shown)2023, Trial courts: 2 decisions (2 Proof sufficient)2022, Trial courts: 4 decisions (2 Proof sufficient, 2 Overdue not shown)2021, Trial courts: 11 decisions (6 Proof sufficient, 2 Mailing/receipt not shown, 2 Overdue not shown, 1 Other element missing)2020, Trial courts: 5 decisions (3 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2019, Trial courts: 6 decisions (5 Proof sufficient, 1 Mailing/receipt not shown)2018, Trial courts: 2 decisions (2 Overdue not shown)2017, Trial courts: 3 decisions (1 Proof sufficient, 1 Overdue not shown, 1 Other element missing)2016, Trial courts: 4 decisions (4 Proof sufficient)2013, Trial courts: 1 decision (1 Proof sufficient)2012, Trial courts: 5 decisions (4 Proof sufficient, 1 Business-record foundation lacking)2011, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2010, Trial courts: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2009, Trial courts: 7 decisions (7 Proof sufficient)2008, Trial courts: 14 decisions (8 Proof sufficient, 1 Mailing/receipt not shown, 1 Overdue not shown, 4 Business-record foundation lacking)2007, Trial courts: 7 decisions (5 Proof sufficient, 2 Business-record foundation lacking)2006, Trial courts: 16 decisions (13 Proof sufficient, 2 Overdue not shown, 1 Other element missing)2005, Trial courts: 22 decisions (14 Proof sufficient, 5 Mailing/receipt not shown, 3 Business-record foundation lacking)2004, Trial courts: 14 decisions (8 Proof sufficient, 2 Mailing/receipt not shown, 4 Other element missing)2025, Trial courts: 2 decisions (1 Proof sufficient, 1 Mailing/receipt not shown)2026, Trial courts: 4 decisions (3 Proof sufficient, 1 Mailing/receipt not shown)2014, Trial courts: 1 decision (1 Proof sufficient)2015, Trial courts: 1 decision (1 Proof sufficient)2024, Trial courts: 1 decision (1 Proof sufficient)This decision
20052010201520202025
Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decisionCites it or cited by itCited or followedDistinguished or limitedDeclined to follow, questioned, overruled or reversed

Of the 1,063 decisions on this question in the Second Department courts and the Court of Appeals, 511 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Cited in this decision

A label shows how this decision treated the case it cites.

  • Rockaway Blvd. Med. P.C. v Progressive Ins. (2004 NY Slip Op 24184) ReversedA billing provider's claim form is incomplete if it omits the relationship with a different treating provider.
  • Mary Immaculate Hosp. v Allstate Ins. Co. (2004 NY Slip Op 02359)The hospitals established entitlement to summary judgment by proving that statutory billing forms were mailed and received and payment was overdue.
  • A.B. Med. Servs. PLLC v Lumbermens Mut. Cas. Co. (2004 NY Slip Op 24194)An insurer's timely medical-necessity denial does not replace admissible proof opposing a provider's summary judgment motion.
  • Amaze Med. Supply v Eagle Ins. Co. (2003 NY Slip Op 51701(U))A provider's completed claim forms establish its prima facie case without additional medical proof when the insurer is precluded.
  • A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 51111(U)) Contrasted (cf., but see)A billing provider cannot recover assigned no-fault benefits for services performed by an independent contractor rather than by it or its employees.
  • Montefiore Med. Ctr. v New York Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 05783) FollowedThe insurer raised factual issues concerning denial of one hospital's late claim and timely verification requests for another's incomplete claim.
  • New York Hosp. Med. Ctr. of Queens v AIU Ins. Co. (2004 NY Slip Op 05217) FollowedThe insurer waived objections to missing signatures by failing to challenge the hospital forms' completeness within 10 days of receipt.
  • A.B. Med. Servs. PLLC v Nationwide Mut. Ins. Co. (2004 NY Slip Op 24506) FollowedThe providers' billing manager affidavit failed to establish submission of properly completed claim forms.
  • New York Hosp. Med. Ctr. of Queens v New York Cent. Mut. Fire Ins. Co. (2004 NY Slip Op 05626) FollowedThe insurer failed to establish mailing of assignment-verification requests and could not defeat the hospitals' summary judgment motion.

Cited by (25)

A label shows how the later decision treated this one.

  • A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co. (2012 NY Slip Op 06902) Declined to followAn insurer's independent contractor defense is subject to preclusion if not asserted in a timely denial of claim.
  • First Help Acupuncture P.C. v State Farm Ins. Co. (2006 NY Slip Op 51043(U)) Contrasted (cf., but see)Fraudulent licensing under 11 NYCRR 65-3.16 (a) (12) is a nonwaivable defense outside the 30-day preclusion rule.
  • A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co. (2008 NY Slip Op 28528) FollowedA provider cannot correct during litigation claim forms identifying the treating professionals as independent contractors.
  • M.G.M. Psychiatry Care P.C. v Utica Mut. Ins. Co. (2006 NY Slip Op 51286(U)) FollowedThe insurer failed to prove mailing of its EUO transcript request, leaving its denials untimely and fraudulent-claim defenses precluded.
  • Boai Zhong Yi Acupuncture Servs. P.C. v Allstate Ins. Co. (2006 NY Slip Op 51288(U)) FollowedA billing provider cannot recover direct payment of assigned no-fault benefits for services rendered by an independent contractor.
  • Multiquest, P.L.L.C. v Allstate Ins. Co. (2005 NY Slip Op 52069(U)) FollowedThe insurer failed to establish grounds for dismissal, and the provider failed to prove mailing of its psychological-services claim.
  • Multiquest PLLC v Allstate Ins. Co. (2005 NY Slip Op 52209(U)) FollowedA billing provider cannot recover assigned no-fault benefits for services rendered by an independent contractor rather than the provider or its employees.
  • Elite Med. Care, P.C. v Travelers Prop. & Cas. Ins. Co. (2006 NY Slip Op 51397(U)) FollowedA provider must prove a properly executed assignment at trial to recover assigned no-fault benefits.
  • A.M. Med. Servs., P.C. v Travelers Ins. Co. (2009 NY Slip Op 51147(U)) FollowedA billing provider cannot correct claim forms identifying treating professionals as independent contractors after litigation has begun.
  • A.B. Med. Servs. PLLC v Countrywide Ins. Co. (2005 NY Slip Op 25424) FollowedA billing provider may not amend fatally defective NF-3 forms at trial to replace independent-contractor designations with employee status.
Show all 25 citing decisions
  • Proscan Radiology of Buffalo v Progressive Cas. Ins. Co. (2006 NY Slip Op 51242(U)) Followed
  • Autoone Ins. Co. v Manhattan Hgts. Med., P.C. (2009 NY Slip Op 51662(U)) Followed
  • Health & Endurance Med., P.C. v Travelers Prop. Cas. Ins. Co. (2011 NY Slip Op 51120(U)) Followed
  • Andrew Carothers, M.D., P.C. v Travelers Ins. Co. (2006 NY Slip Op 52154(U)) Followed
  • State Farm Mut. Auto. Ins. Co. v Farescal (2009 NY Slip Op 50937(U)) Followed
  • Metroscan Imaging, P.C. v GEICO Ins. Co. (2006 NY Slip Op 26319)
  • A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co. (2006 NY Slip Op 50504(U))
  • Complete Orthopedic Supplies, Inc. v State Farm Ins. Co. (2007 NY Slip Op 27192)
  • Tahir v Progressive Cas. Ins. Co. (2006 NY Slip Op 26149)
  • Health & Endurance Med., P.C. v Liberty Mut. Ins. Co. (2008 NY Slip Op 50864(U))
  • Andrew Carothers, M.D., P.C. v GEICO Indem. Co. (2006 NY Slip Op 26326)
  • V.S. Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 52553(U))
  • Painless Med., P.C. v GEICO (2011 NY Slip Op 21228)
  • SK Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 50721(U))
  • Multiquest, P.L.L.C. v Allstate Ins. Co. (2007 NY Slip Op 51776(U))

Similar decisions

  • A.B. Med. Servs. PLLC v Prudential Prop. & Cas. Ins. Co. (2005 NY Slip Op 25032)An insurer may assert a lack-of-coverage defense despite an untimely denial of no-fault claims.
  • A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co. (2005 NY Slip Op 25277)A billing provider cannot recover assigned no-fault benefits directly for services rendered by an independent contractor.
  • A.B. Med. Servs. PLLC v Peerless Ins. Co. (2006 NY Slip Op 26318)A provider need not prove assignment validity where the insurer neither sought verification nor raised an assignment defect in its denials.
  • A.B. Med. Servs. PLLC v Commercial Mut. Ins. Co. (2006 NY Slip Op 26118)An insurer may assert the insured's fraudulent policy procurement against a provider assignee despite the 30-day preclusion rule.
  • A.B. Med. Servs. PLLC v Farm Family Cas. Ins. Co. (2004 NY Slip Op 24346)A denial's timeliness is measured by its mailing date, not the date printed on the denial form.
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