April 14, 2008

Health & Endurance Med., P.C. v Liberty Mut. Ins. Co. (2008 NY Slip Op 50864(U))

https://www.beynensonlaw.com/case-law/health-endurance-med-p-c-v-liberty-mut-ins-co-2008-ny-slip-op50864u/

Court: Appellate Term, Second Department
Decided: April 14, 2008
Citation: 2008 NY Slip Op 50864(U) · 19 Misc 3d 137(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later history: Overruled by A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co. (2012 NY Slip Op 06902)
Later treatment: Followed in 2 later decisions (see Cited by)
Issues: Fraudulent incorporation (Mallela) Timeliness and preclusion

Cite as

Health & Endurance Med., P.C. v Liberty Mut. Ins. Co., 19 Misc 3d 137(A), 2008 NY Slip Op 50864(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2008)

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 billing provider cannot recover direct payment of assigned no-fault benefits for services rendered by an independent contractor. Under 11 NYCRR 65-3.11 (a), a billing entity is not the provider of services furnished by a treating professional who is neither the entity nor its employee. The provider's claim forms identified the treating professional as an independent contractor, and the provider conceded that status in opposing the insurer's cross motion. The defense was nonwaivable and not subject to preclusion. The Appellate Term, Second Department, affirmed the order denying the provider's summary judgment motion and granting the insurer's cross motion dismissing the complaint, without reaching any other issue.

Reported in New York Official Reports at Health & Endurance Med., P.C. v Liberty Mut. Ins. Co. (2008 NY Slip Op 50864(U))

[*1]

Health & Endurance Med., P.C. v Liberty Mut. Ins. Co.

2008 NY Slip Op 50864(U) [19 Misc 3d 137(A)]

Decided on April 14, 2008

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This opinion is uncorrected and will not be published in the printed Official Reports.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 April 14, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., GOLIA and RIOS, JJ
2006-1231 K C.

Health & Endurance Medical, P.C. a/a/o Arroyo Millie, Appellant,
against
Liberty Mutual Ins. Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), entered May 1, 2006. The order denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment.

Order affirmed with $10 costs.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment and defendant cross-moved for summary judgment on the ground that plaintiff was seeking to recover for services performed by an independent contractor. The court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint. This appeal by plaintiff ensued.

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 Insurance Department Regulations (11 NYCRR) § 65-3.11 (a) and is therefore not entitled to recover “direct payment” of assigned no-fault benefits from the defendant insurer (see Health & Endurance Med. P.C. v State Farm Mut. Auto. Ins. Co., 12 Misc 3d 134[A], 2006 NY Slip Op 51191[U] [App Term, 2d & 11th Jud Dists 2006]; Craig Antell, D.O., P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50521[U] [App Term, 1st Dept 2006]; A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 9 Misc 3d 36 [App Term, 2d & 11th Jud Dists 2005]; 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 2005]).

In the case at bar, the claim forms submitted by plaintiff in support of its motion for summary judgment state that the treating professional was an independent contractor and, in opposition to defendant’s cross motion, plaintiff concedes that the services were rendered by an [*2]independent contractor. Contrary to plaintiff’s contention, said defense 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]; M.G.M. Psychiatry Care P.C. v Utica Mut. Ins. Co., 12 Misc 3d 137[A], 2006 NY Slip Op 51286[U] [App Term, 2d & 11th Jud Dists 2006]; Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2005]). As a result, the court properly denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for summary judgment dismissing the complaint.

In light of the foregoing, we reach no other issue.

Weston Patterson, J.P., Golia and Rios, JJ., concur.
Decision Date: April 14, 2008

Cited in this decision

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.
Craig Antell, D.O., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 50521(U))A billing provider cannot receive assigned no-fault benefits for services performed by an independent contractor rather than itself or its employees.
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 New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 51111(U))A billing provider cannot recover assigned no-fault benefits for services performed by an independent contractor rather than by it or its employees.
M.G.M. Psychiatry Care P.C. v Utica Mut. Ins. Co. (2006 NY Slip Op 51286(U))The insurer failed to prove mailing of its EUO transcript request, leaving its denials untimely and fraudulent-claim defenses precluded.
Rockaway Blvd. Med. P.C. v Progressive Ins. (2005 NY Slip Op 25278)A provider's omission of its relationship with the treating physician from claim forms does not defeat its prima facie case.

Cited by

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) OverruledAn insurer's independent contractor defense is subject to preclusion if not asserted in a timely denial of claim.
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.
State Farm Mut. Auto. Ins. Co. v Farescal (2009 NY Slip Op 50937(U)) FollowedA medical provider cannot recover assigned no-fault benefits for services rendered by independent contractors rather than by it or its employees.

Similar decisions

Health & Endurance Med., P.C. v Travelers Prop. Cas. Ins. Co. (2011 NY Slip Op 51120(U))An independent contractor who renders the billed services is the provider entitled to assigned no-fault benefits.
V.S. Med. Servs. P.C. v Allstate Ins. Co. (2007 NY Slip Op 50016(U))A billing provider cannot recover assigned no-fault benefits for services rendered by independent contractors.
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.
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.
V.S. Med. Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 52553(U))A billing provider cannot recover direct assigned no-fault payments for services rendered by independent contractors rather than its employees.