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

SUPREME COURT OF THE STATE OF NEW YORK

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

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