June 14, 2011

Health & Endurance Med., P.C. v Travelers Prop. Cas. Ins. Co. (2011 NY Slip Op 51120(U))

https://www.beynensonlaw.com/case-law/health-endurance-med-p-c-v-travelers-prop-cas-ins-co-2011-ny-slip-op51120u/

Court: Appellate Term, Second Department
Decided: June 14, 2011
Citation: 2011 NY Slip Op 51120(U) · 31 Misc 3d 150(A)
Posture: Motion to dismiss (CPLR 3211)
Outcome: Insurer prevailed
Issues: Assignments and standing Discovery and procedure

Cite as

Health & Endurance Med., P.C. v Travelers Prop. Cas. Ins. Co., 31 Misc 3d 150(A), 2011 NY Slip Op 51120(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2011)

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.

An independent contractor who renders the billed services is the provider entitled to assigned no-fault benefits. The plaintiff's claim forms stated that an independent contractor performed the services. Under Rockaway Blvd. Med. P.C. v Progressive Ins., the plaintiff therefore was not entitled to payment. Following A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., the statement could not be corrected after litigation began, even if erroneous. The insurer could seek dismissal for failure to state a cause of action after answering under CPLR 3211 (a) (7) and (e), despite an earlier improperly noticed summary judgment cross motion. The Appellate Term, Second Department, reversed the order and granted the insurer's motion to dismiss.

Reported in New York Official Reports at Health & Endurance Med., P.C. v Travelers Prop. Cas. Ins. Co. (2011 NY Slip Op 51120(U))

[*1]

Health & Endurance Med., P.C. v Travelers Prop. Cas. Ins. Co.

2011 NY Slip Op 51120(U) [31 Misc 3d 150(A)]

Decided on June 14, 2011

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 14, 2011

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS

PRESENT: : STEINHARDT, J.P., GOLIA and RIOS, JJ
2010-281 K C.

Health & Endurance Medical, P.C. as Assignee of SHAKEEL REHMAN, Respondent,
against
Travelers Property Casualty Ins. Co., Appellant.

Appeal from an order of the Civil Court of the City of New York, Kings County (Alice Fisher Rubin, J.), entered November 4, 2009. The order denied defendant’s motion to dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, after issue was joined, plaintiff moved for summary judgment and defendant purported to cross-move for summary judgment dismissing the complaint on the ground that, among other things, plaintiff could not recover for services rendered by an independent contractor. The Civil Court (Genine D. Edwards, J.) denied plaintiff’s motion and denied defendant’s purported cross motion on the ground that “plaintiff was not properly noticed of the intent to cross move for summary judgment.” Thereafter, defendant moved, pursuant to CPLR 3211 (a) (7), to dismiss the complaint based upon the fact that the services were rendered by an independent contractor. The Civil Court denied defendant’s motion.

Contrary to plaintiff’s contention, defendant was permitted to move to dismiss on the ground that the complaint fails to state a cause of action notwithstanding defendant’s service of an answer (CPLR 3211 [a] [7]; [e]). Plaintiff’s claim forms state that the services at issue were rendered by an independent contractor. Where services are rendered by an independent contractor, the independent contractor is the provider entitled to the payment of the assigned first-party no-fault benefits (see Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2005]). This court has held that a statement in a claim form, that the services were provided by an independent contractor, may not be corrected once litigation has commenced, even if the statement was erroneous (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 70 [App Term, 2d, 11th & 13th Jud Dists 2009]). Thus, defendant has conclusively demonstrated that plaintiff is not the provider entitled to payment of the assigned first-party no-fault benefits (A.M. Med. Servs., P.C., 22 Misc 3d 70; Rockaway [*2]
Blvd. Med. P.C., 9 Misc 3d 52), and defendant’s motion to dismiss for failure to state a cause of action should have been granted (see CPLR 3211 [a] [7]; see generally Sokol v Leader, 74 AD3d 1180 [2010]).

Steinhardt, J.P., Golia and Rios, JJ., concur.
Decision Date: June 14, 2011

Cited in this decision

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

Rockaway Blvd. Med. P.C. v Progressive Ins. (2005 NY Slip Op 25278) FollowedA provider's omission of its relationship with the treating physician from claim forms does not defeat its prima facie case.
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.

Cited by

A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co. (2012 NY Slip Op 06902)An insurer's independent contractor defense is subject to preclusion if not asserted in a timely denial of claim.

Similar decisions

Health & Endurance Med., P.C. v Liberty Mut. Ins. Co. (2008 NY Slip Op 50864(U))A billing provider cannot recover direct payment of assigned no-fault benefits for services rendered by an independent contractor.
Health & Endurance Med. P.C. v State Farm Mut. Auto. Ins. Co. (2006 NY Slip Op 51191(U))A billing provider cannot recover assigned no-fault benefits for services rendered by an independent contractor rather than its employees.
A.M. Med. Servs., P.C. v Travelers Ins. Co. (2009 NY Slip Op 51147(U))A billing provider cannot correct claim forms identifying treating professionals as independent contractors after litigation has begun.
Top Choice Med., P.C. v Republic W. Ins. Co. (2013 NY Slip Op 51108(U))The insurer's independent-contractor defense was precluded because it failed to establish a timely denial and omitted that ground from its denial.
A.M. Med. Servs., P.C. v Liberty Mut. Ins. Co. (2006 NY Slip Op 51044(U))The provider's W-2 forms did not establish employment when services were rendered by professionals listed as independent contractors.