July 3, 2006

Boai Zhong Yi Acupuncture Servs. P.C. v Allstate Ins. Co. (2006 NY Slip Op 51288(U))

https://www.beynensonlaw.com/case-law/boai-zhong-yi-acupuncture-servs-p-c-v-allstate-ins-co-2006-ny-slip-op-51288u/

Court: Appellate Term, Second Department
Decided: July 3, 2006
Citation: 2006 NY Slip Op 51288(U) · 12 Misc 3d 137(A)
Posture: Summary judgment
Outcome: Insurer prevailed
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Assignments and standing

Cite as

Boai Zhong Yi Acupuncture Servs. P.C. v Allstate Ins. Co., 12 Misc 3d 137(A), 2006 NY Slip Op 51288(U) (App Term, 2d Dept, 2d & 11th Jud Dists 2006)

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. Of three NF-3 forms supporting the provider's motion, one identified an independent contractor as the treating provider and two left the relevant portion blank. Under 11 NYCRR 65.15 (j) (1), now 11 NYCRR 65-3.11 (a), a billing entity is not the provider of services performed by an independent contractor rather than the entity or its employees. The Appellate Term, Second Department, affirmed denial of the provider's summary judgment motion because its submissions raised factual issues. It reached no other issues, and a separate concurrence agreed only with the result.

Reported in New York Official Reports at Boai Zhong Yi Acupuncture Servs. P.C. v Allstate Ins. Co. (2006 NY Slip Op 51288(U))

[*1]

Boai Zhong Yi Acupuncture Servs. P.C. v Allstate Ins. Co.

2006 NY Slip Op 51288(U) [12 Misc 3d 137(A)]

Decided on July 3, 2006

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 3, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2005-1172 K C.

Boai Zhong Yi Acupuncture Services P.C. A/A/O STEFANIYA MARTYNUK, Appellant,
against
Allstate Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County

(Eileen Nadelson, J.), entered March 15, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for health care services rendered to its assignor, plaintiff moved for summary judgment. In support of its motion for summary judgment on three claims, the plaintiff submitted the three NF-3 forms. Number 16 of each form states:

“If treating provider is different that [sic] billing provider complete the following.”

On two of the forms “the following” was not completed. On the third form, Number 16 identifies Dixu Gd Gao as the treating provider, and under the “business relationship” category, the box “Independent Contractor” is checked. 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 health care services [*2]rendered within the meaning of 11 NYCRR 65.15 (j) (1) (now 11 NYCRR 65-3.11 [a]) and is therefore not entitled to recover “direct payment” of assigned no-fault benefits from the insurer (Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52 [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]; see also Antell v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50521[U] [App Term, 1st Dept]; A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 9 Misc 3d 36 [App Term, 2d & 11th Jud Dists 2005]). In light of [*3]
the factual issues raised by plaintiff’s submissions, the plaintiff’s motion for summary judgment was properly denied. In view of the foregoing, we reach no other issues.

Weston Patterson, J.P., and Belen, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.

Decision Date: July 3, 2006

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.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 51111(U)) FollowedA billing provider cannot recover assigned no-fault benefits for services performed by an independent contractor rather than by it or 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.

Cited by

A label shows how the later decision treated this one.

East Coast Acupuncture, P.C. v New York Cent. Mut. Ins. (2008 NY Slip Op 50344(U)) FollowedA billing provider cannot recover direct payment of assigned no-fault benefits for services rendered by an independent contractor.
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.
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.

Similar decisions

Boai Zhong Yi Acupuncture Servs., P.C. v Allstate Ins. Co. (2007 NY Slip Op 51601(U))The provider's conclusory business-records affidavit failed to establish prima facie entitlement to summary judgment.
Boai Zhong Yi Acupuncture Servs., P.C. v Travelers Ins. Co. (2006 NY Slip Op 52516(U))The provider failed to establish submission of its claim, and the insurer's delay letter did not identify the claim at issue.
GBI Acupuncture, P.C. v Allstate Ins. Co. (2016 NY Slip Op 51412(U))The insurer failed to establish timely mailing of denials supporting its fee-schedule payment defense.
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.
Boai Zhong Yi Acupuncture Servs., P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 51202(U))The insurer established timely mailing of verification requests, tolling the 30-day period and making its denials timely.