March 24, 2008

Atlantis Med., DC v Liberty Mut. Ins. Co. (2008 NY Slip Op 50584(U))

Headnote

The main issue in this case was whether the defendant, Liberty Mutual Insurance Company, was entitled to summary judgment dismissing the action for no-fault first party benefits on the ground that the medical services were performed by an independent contractor. The court considered the fact that the plaintiff provider submitted the treating physician's affidavit stating that he is the plaintiff's president and sole shareholder, not an independent contractor, and that the box for "Independent Contractor" on the NF-3 claim form had been marked erroneously. The court held that in these circumstances, the record presented issues of fact as to whether the services were performed by the plaintiff through its officer rather than an independent contractor. Therefore, the court affirmed the order of the Civil Court denying the defendant's motion for summary judgment.

Reported in New York Official Reports at Atlantis Med., DC v Liberty Mut. Ins. Co. (2008 NY Slip Op 50584(U))

Atlantis Med., DC v Liberty Mut. Ins. Co. (2008 NY Slip Op 50584(U)) [*1]

Atlantis Med., DC v Liberty Mut. Ins. Co.

2008 NY Slip Op 50584(U) [19 Misc 3d 131(A)]

Decided on March 24, 2008

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 24, 2008

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT: DAVIS, J.P., SCHOENFELD, HEITLER JJ
570776/07.

Atlantis Medical, DC, a/a/o Joahereece A. Blackstock, Plaintiff-Respondent,
against
Liberty Mutual Insurance Company, Defendant-Respondent.

Defendant appeals from an order of the Civil Court of the City of New York, Bronx County (Ben R. Barbato, J.), dated March 21, 2007, which denied its motion for summary judgment.

Per Curiam.

Order (Ben R. Barbato, J.), dated March 21, 2007, affirmed, without costs.

Defendant’s motion for summary judgment dismissing this action for no-fault first party benefits on the ground that the underlying medical services were performed by an independent contractor was properly denied. In opposition to the motion, the plaintiff provider submitted the treating physician’s affidavit stating that he is the plaintiff’s president and sole shareholder, not an independent contractor, and that the box for “Independent Contractor” on the NF-3 claim form had been marked erroneously. In these circumstances, the record presents issues of fact as to whether the services were performed by plaintiff through its officer rather than an independent contractor.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
I concurI concurI concur
Decision Date: March 24, 2008