February 21, 2008

East Coast Acupuncture, P.C. v New York Cent. Mut. Ins. (2008 NY Slip Op 50344(U))

https://www.beynensonlaw.com/case-law/east-coast-acupuncture-p-c-v-new-york-cent-mut-ins-2008-ny-slip-op50344u/

Court: Appellate Term, Second Department
Decided: February 21, 2008
Citation: 2008 NY Slip Op 50344(U) · 18 Misc 3d 139(A)
Posture: Summary judgment
Outcome: Split result
Later treatment: Followed in 1 later decision (see Cited by)
Issues: Assignments and standing Fee schedule Timeliness and preclusion
Legal questions: No covered accident (founded belief) (see the maps)

Cite as

East Coast Acupuncture, P.C. v New York Cent. Mut. Ins., 18 Misc 3d 139(A), 2008 NY Slip Op 50344(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 65.15 (j) (1), now 11 NYCRR 65-3.11 (a), the provider was denied summary judgment on two claims identifying an independent contractor as treating provider. A timely fee-schedule defense raised a triable issue on another claim. On the remaining claim, the insurer failed to establish timely denial or verification under 11 NYCRR 65-3.8 (c) and 65-3.5 (a), (b); its investigator also failed to support a founded belief that the injuries lacked a nexus to the accident. The Appellate Term, Second Department, reversed the judgment, awarded partial summary judgment only on that remaining claim, and remanded for interest, attorney's fees and further proceedings.

Reported in New York Official Reports at East Coast Acupuncture, P.C. v New York Cent. Mut. Ins. (2008 NY Slip Op 50344(U))

[*1]

East Coast Acupuncture, P.C. v New York Cent. Mut. Ins.

2008 NY Slip Op 50344(U) [18 Misc 3d 139(A)]

Decided on February 21, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 February 21, 2008

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : PESCE, P.J., and RIOS, J.
2006-80 Q C

East Coast Acupuncture, P.C. as assignee of Manuel Ovalle, Respondent,
against
New York Central Mutual Insurance, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered August 12, 2005, deemed from a judgment entered on November 29, 2005 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 12, 2005 order granting plaintiff’s motion for summary judgment, awarded plaintiff the principal sum of $2,404.30.

Judgment reversed without costs, order granting plaintiff’s motion for summary judgment vacated, plaintiff’s motion for summary judgment granted to the extent of awarding it partial summary judgment on its claim for $270, and matter remanded to the
court below for a calculation of statutory interest and attorney’s fees thereon and for all further proceedings on the remaining claims.

In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The court below granted plaintiff’s motion for summary judgment and the instant appeal by defendant ensued.

Since defendant raised no issue on appeal regarding plaintiff’s establishment of its prima facie case, we do not pass on the propriety of the determination of the court below with respect thereto.

The NF-3 forms submitted in support of plaintiff’s motion for summary judgment regarding two of its claims ($630 and $694.30) identified the treating provider as Kimer Arkady and under the “Business Relation” category therein, a “V” was placed in the box labeled “Independent Contractor.” It is well settled that “[w]here 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 . . . .” (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 & 11th Jud Dists 2006] [citations omitted]). Consequently, plaintiff was not entitled to summary judgment on its claims for the sums of $630 and $694.30.

Furthermore, plaintiff was not entitled to summary judgment on its claim for the sum of $810. Defendant established that this claim was timely denied on the ground, inter alia, that the fees charged for the services provided were excessive and not in accordance with the Workers’ Compensation fee schedule. Accordingly, said defense raised a triable issue of fact (see A.B. Med. Servs., PLLC v American Tr. Ins. Co., 15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d & 11th Jud Dists 2007]; Triboro Chiropractic & Acupuncture P.L.L.C. v New York Cent. Mut. Fire Ins. Co., 7 Misc 3d 138[A], 2005 NY Slip Op 50856[U] [App Term, 2d & 11th Jud Dists 2005]).

Turning to plaintiff’s claim for the sum of $270, since defendant failed to pay or deny the claim within the 30-day prescribed period (Insurance Department Regulations [11 NYCRR] § 65-3.8 [c]) and failed to establish that such period was extended by its issuance of a timely request for verification (Insurance Department Regulations [11 NYCRR] § 65-3.5 [a], [b]), defendant was precluded from raising most defenses (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282 [1997]). While defendant was not precluded from raising its defense that the assignor’s injuries were not causally related to the accident despite its untimely denial (see Executive MRI Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 140[A], 2006 NY Slip Op 52250[U] [App Term, 2d & 11th Jud Dists 2006]), the affidavit submitted by defendant’s investigator was insufficient to demonstrate that defendant’s defense of a lack of nexus between the accident and the injuries sustained by plaintiff’s assignor was based upon a “founded belief that the alleged injur[ies] do[] not arise out of an insured incident” (Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199 [1997]). Thus, defendant failed to establish the existence of a triable issue of fact with respect to this claim.

Accordingly, plaintiff’s motion for summary judgment is granted to the extent of awarding it partial summary judgment on the $270 claim, and the matter is remanded to the court below for a calculation of statutory interest and attorney’s fees thereon and for all further proceedings on the remaining claims.

Pesce, P.J., and Rios, J., concur. [*3]
Decision Date: February 21, 2008

Legal questions

A question of no-fault law this decision rules on, from our Legal Questions pages. Bars count the decisions on the question by year and court, coloured by category; circles are this decision and the decisions on the question it cites or that cite it. Point at a bar or circle for details. The categories and summaries are Beynenson Law’s classification, made by a language model and checked by a second reading.

No covered accident (founded belief)

Open the full map

Did the insurer show the claimed injuries did not arise from a covered accident (staged, intentional, or unrelated)?

This decision: Insurer's proof did not raise an issue or failed at trial; provider prevails on it (rules on the question, but another ground decided the case)

On one claim the insurer's untimely denial did not preclude its lack-of-causation defense, but its investigator's affidavit failed to show a founded belief that the injuries did not arise from the accident, so the provider won partial summary judgment.

Defense establishedTriable issueInsurer's motion failsDefense not shownThis decisionCites it or cited by itCited or followed

Of the 233 decisions on this question in the Second Department courts and the Court of Appeals, 80 (this one included) are in the same category.

Cited in this decision

A label shows how this decision treated the case it cites.

Boai Zhong Yi Acupuncture Servs. P.C. v Allstate Ins. Co. (2006 NY Slip Op 51288(U)) FollowedA billing provider cannot recover direct payment of assigned no-fault benefits for services rendered by an independent contractor.
A.B. Med. Servs., PLLC v American Tr. Ins. Co. (2007 NY Slip Op 50680(U)) FollowedPeer reviews citing insufficient information do not raise a medical-necessity issue without proof that the insurer sought verification.
Triboro Chiropractic & Acupuncture P.L.L.C. v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 50856(U)) FollowedThe provider obtained partial summary judgment on three untimely denied claims; timely fee schedule denials raised triable issues on the rest.
Executive MRI Imaging, P.C. v New York Cent. Mut. Fire Ins. Co. (2006 NY Slip Op 52250(U)) FollowedThe insurer's causation report was inadmissible, and curing it for the first time in sur-reply did not defeat the provider's summary judgment motion.

Cited by

A label shows how the later decision treated this one.

Broad St. Acupuncture, P.C. v American Tr. Ins. Co. (2013 NY Slip Op 50453(U)) FollowedThe insurer obtained dismissal of paid portions of two claims, but inadequate IME proof left the provider entitled to judgment on another claim.
Essential Acupuncture Servs., P.C. v NY Cent. Mut. Fire Ins. Co. (2012 NY Slip Op 51623(U))The insurer established lack of medical necessity for three claims, but failed to conclusively prove its defenses to three others.

Similar decisions

NYC East-West Acupuncture, P.c. v Maryland Cas. Co. (2008 NY Slip Op 51762(U))The insurer's unrebutted IME evidence established lack of medical necessity, while the provider failed to authenticate its claim records.
East Coast Acupuncture, P.C. v Clarendon Natl. Ins. Co. (2011 NY Slip Op 51229(U))The insurer established IME nonappearance but failed to show tolling of the denial period for its fee-schedule reductions.
Eastern Star Acupuncture, P.C. v American Tr. Ins. Co. (2011 NY Slip Op 52205(U))The insurer's IME nonappearance defense was precluded for the claim its denial form instead denied based on an IME report.
Ying E. Acupuncture, P.C. v Global Liberty Ins. (2008 NY Slip Op 51863(U))The insurer failed to prove timely denials of seven claims, but its IME report raised a medical-necessity issue for two later-treatment claims.
Acupuncture Healthcare Plaza I, P.C. v Allstate Ins. Co. (2017 NY Slip Op 51903(U))The insurer failed to establish timely mailing of its fee-schedule denial, while the provider failed to establish entitlement to payment.