June 8, 2009

A.M. Med. Servs., P.C. v Travelers Ins. Co. (2009 NY Slip Op 51147(U))

https://www.beynensonlaw.com/case-law/a-m-med-servs-p-c-v-travelers-ins-co-2009-ny-slip-op-51147u/

Court: Appellate Term, Second Department
Decided: June 8, 2009
Citation: 2009 NY Slip Op 51147(U) · 23 Misc 3d 147(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)
Issues: Fraudulent incorporation (Mallela) Timeliness and preclusion

Cite as

A.M. Med. Servs., P.C. v Travelers Ins. Co., 23 Misc 3d 147(A), 2009 NY Slip Op 51147(U) (App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009)

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 correct claim forms identifying treating professionals as independent contractors after litigation has begun. The insurer sought summary judgment based on forms stating that independent contractors rendered the services. The provider submitted W-2 forms and an owner's affidavit asserting employment and typographical error. Under 11 NYCRR 65-3.11 (a), a billing entity is not the provider of services rendered by independent contractors, and that defense is not subject to preclusion. Following A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., the court found the asserted employment status irrelevant because the submitted bills did not entitle the provider to payment. The Appellate Term, Second Department, affirmed the judgment dismissing the complaint.

Reported in New York Official Reports at A.M. Med. Servs., P.C. v Travelers Ins. Co. (2009 NY Slip Op 51147(U))

[*1]

A.M. Med. Servs., P.C. v Travelers Ins. Co.

2009 NY Slip Op 51147(U) [23 Misc 3d 147(A)]

Decided on June 8, 2009

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This opinion is uncorrected and will not be published in the printed Official Reports.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 8, 2009

SUPREME COURT OF THE STATE OF NEW YORK

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

PRESENT: : PESCE, P.J., GOLIA and STEINHARDT, JJ
2008-1076 Q C.

A.M. Medical Services, P.C. as assignee of RAISA FASKHUTDINOVA, Appellant,
against
Travelers Insurance Company, Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diane A. Lebedeff, J.), entered July 18, 2007, deemed from a judgment of the same court entered May 20, 2008 (see CPLR 5501 [c]). The judgment, entered pursuant to the July 18, 2007 order granting defendant’s motion seeking, in effect, summary judgment, dismissed the complaint.

Judgment affirmed without costs.

In this action by a provider to recover assigned first-party no-fault benefits, defendant moved, in effect, for summary judgment dismissing the complaint. In support of its motion, defendant submitted the subject claim forms, which indicate that the billed-for services were rendered by independent contractors. Plaintiff’s opposition to the motion was based upon W-2 tax forms for the treating providers, which identified plaintiff as their employer. Plaintiff’s owner stated in an affidavit that the treating providers were employees, and that while the submitted claim forms identified them as independent contractors, it was a typographical error. The Civil Court granted defendant’s motion, finding that “the bills indicated that the services in question were performed by independent contractors.” Plaintiff appeals, arguing that it raised an issue of fact as to the employment status of its treating providers and that defendant failed to verify their employment status or to issue timely denials of the claims. A judgment was subsequently entered.

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) (see Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52, 54 [App Term, 2d & 11th Jud Dists 2005]). Such a defense is [*2]nonprecludable (id.).

“[T]he claim forms at issue state that the treating professionals were independent contractors. Contrary to plaintiff’s contention, the allegation that said treating professionals were actually employees, and that the claim forms contain misinformation, is irrelevant” (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 70, 72 [App Term, 2d & 11th Jud Dists 2008]). As plaintiff did not submit bills that entitled it to payment, correction of the defect involved herein is not permitted once litigation has been commenced (A.M. Med. Servs., P.C., 22 Misc 3d 70). Accordingly, the judgment is affirmed.

Pesce, P.J., Golia and Steinhardt, JJ., concur.
Decision Date: June 08, 2009

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 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.
Painless Med., P.C. v GEICO (2011 NY Slip Op 21228)A professional corporation's sole shareholder's death does not require substitution where the corporation remains in existence.

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.
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 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.
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.