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July 13, 2006

Elite Med. Care, P.C. v Travelers Prop. & Cas. Ins. Co. (2006 NY Slip Op 51397(U))

https://www.beynensonlaw.com/case-law/elite-med-care-p-c-v-travelers-prop-cas-ins-co-2006-ny-slip-op-51397u/

Court
Civil Court of the City of New York, Kings County
Judge
Edwards, J.
Decided
July 13, 2006
Citation
2006 NY Slip Op 51397(U) · 12 Misc 3d 1183(A)
Posture
Trial
Outcome
Insurer prevailed
Issues
Assignments and standing Provider's prima facie case Fraudulent incorporation (Mallela)
Legal questions
Claimant's prima facie case at trial · Challenging the assignment of benefits (see the maps)
Cite as
Elite Med. Care, P.C. v Travelers Prop. & Cas. Ins. Co., 12 Misc 3d 1183(A), 2006 NY Slip Op 51397(U) (Civ Ct, Kings County 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 provider must prove a properly executed assignment at trial to recover assigned no-fault benefits. The Civil Court, Kings County, directed judgment for the insurer and dismissed the complaint after a bench trial because no assignment evidence was introduced. The billing witness identified bills and correspondence but was never asked about an assignment. Under 11 NYCRR 65-3.11 (b) (2) (i), complete absence of assignment proof differed from technical defects that may be waived by an untimely or insufficient denial. The insurer's initial dismissal motion based on provider eligibility under 11 NYCRR 65-3.11 (a) failed because it offered no competent proof of independent-contractor status and did not establish that it sought verification of the challenged claim-form information.

Reported in New York Official Reports at Elite Med. Care, P.C. v Travelers Prop. & Cas. Ins. Co. (2006 NY Slip Op 51397(U))

[*1]
Elite Med. Care, P.C. v Travelers Prop. & Cas. Ins. Co.
2006 NY Slip Op 51397(U) [12 Misc 3d 1183(A)]
Decided on July 13, 2006
Civil Court, Kings County
Edwards, J.
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This opinion is uncorrected and will not be published in the printed Official Reports.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 13, 2006

Civil Court, Kings County



Elite Medical Care, P.C., as Assignee of Dan Teper, Plaintiff,

against

Travelers Property and Casualty Insurance Company, Defendant.

047034/2004

Genine D. Edwards, J.

This is a bench trial of an action for first-party benefits, attorney’s fees and statutory interest commenced by Elite Medical Care, P.C. (“plaintiff”) as assignee of Dan Teper (“assignor”) against Travelers Property and Casualty Insurance Company (“defendant”) pursuant to the New York Insurance Law and the No-Fault regulations. Plaintiff billed defendant a total of $5,155.47 for medical treatment rendered to its assignor. The treatment was provided from January 2002 through July 2002.

At the outset, defendant made a motion to dismiss plaintiff’s complaint because the NF-3 forms (proof of claim) were defective. Defendant contended that there was an issue regarding the relationship of a health service provider and the plaintiff. Defense counsel stated that according to New York State information, Ahmed Salem (a named health care provider on several of the NF-3 forms) is the owner of plaintiff, but Mr. Salem allegedly admitted under oath that he is not the owner. Defendant also argued that the NF-3 forms were not pleadings and could not be amended as of right. Plaintiff responded by indicating that the subject treatment was performed in 2002 predating the 2004 NF-3 form. This Court reserved its decision on defendant’s motion.

The applicable insurance regulations regarding direct payment of no-fault benefits establishes that “an insurer shall pay benefits upon assignment directly to providers of health care services ” 11 NYCRR 65-3.11(a). Pursuant to this regulation defendant asserted that the plaintiff is not a “provider”. In support of this contention defendant alleged that the NF-3 forms submitted by plaintiff did not identify the relationship between the plaintiff and the treating physicians.

Defendant also argued that there is contradictory evidence regarding Mr. Salem’s relationship with the plaintiff.

Defendant is correct. No-fault benefits must be paid directly to providers of services. A.B. Medical Services PLLC v. Liberty Mutual Insurance Company, 9 Misc 3d 36 (2nd Dept. 2005); Rockaway Boulevard Medical P.C. v. Progressive Insurance, 9 Misc 3d 52 (2nd Dept. 2005); A.B. Medical Services PLLC, DAV Chiropractic P.C., Daniel Kim’s Acupuncture P.C., G.A. Physical Therapy P.C. v. Countrywide Insurance Company, 10 Misc 3d 249 (NY Civ. Ct Kings County 2005); Multiquest, PLLC v. Allstate Insurance Company, 10 Misc 3d 1061(A) (NY Civ. Ct Queens County 2005); Multiquest, PLLC v. Allstate Insurance Company, 10 Misc 3d 1069(A) (NY Civ Ct Queens County 2005). [*2]

If it is demonstrated that the billing entity or its employees are not the actual health care providers then they are not entitled to payment of no-fault benefits directly from the insurance company. A.B. Medical Services PLLC, DAV Chiropractic P.C., Daniel Kim’s Acupuncture P.C., G.A. Physical Therapy P.C., supra; Rockaway Boulevard Medical P.C., supra; Health and Endurance Medical P.C. v. State Farm Mutual Automobile Ins., 2006 NY Slip Op. 51191(U) (App. Term 2nd & 11th Jud. Dists. 2006); Boai Zhong Yi Acupuncture Services v. Allstate Insurance Co., 2006 NY Slip Op. 51288(U) (App. Term 2nd & 11th Jud. Dists. 2006). Moreover, this defense cannot be waived and is not subject to preclusion for failure to timely deny. Rockaway Boulevard Medical P.C., supra; M.G.M. Psychiatry Care P.C. v. Utica Mutual Insurance Company, 2006 NY Slip Op. 51286(U) (App. Term 2nd & 11th Jud. Dists. 2006).

However, as in Multiquest PLLC, 10 Misc 3d 1061(A), supra, the defendant herein failed to provide any competent evidence that Mr. Salem was an independent contractor and not plaintiff’s employee. In addition, the defendant predicated its motion to dismiss upon the insufficiency of the NF-3 forms, without proving that it requested verification of the information provided therein. Rockaway Boulevard Medical P.C., supra. Hence, defendant’s motion must fail.

Turning to the trial, the plaintiff proffered the testimony of Viktoria Beylana, an employee of Maugust, Inc. Plaintiff hired Maugust Inc. to handle its billing and collection matters. Ms. Beylana testified that she received all of the medical paperwork from the plaintiff then prepared and mailed the bills. She also handled plaintiff’s incoming mail, denials and verification requests. Ms. Beylana responded to denials by submitting further information to the insurance company. Ms. Beylana identified nine bills and two letters to the defendant, which were marked into evidence. She had no knowledge as to the employment relationship of the health care providers and the plaintiff. Plaintiff’s counsel never questioned Ms. Beylana about an assignment of benefits form nor did Ms. Beylana identify same. Absolutely no evidence was presented regarding assignment of benefits. Upon the plaintiff resting, the defendant made a motion for a directed verdict due to plaintiff’s failure to prove a prima facie case.

The insurance regulations prescribe when a health care provider may receive direct payment from an insurer. 11 NYCRR 65-3.11(b). Specifically, the provider must have a properly executed assignment. 11 NYCRR 65-3.11(b)(2)(i). It is axiomatic that such assignment must be proved before the provider is entitled to receive “assigned” no-fault benefits. A.B. Medical Services PLLC Daniel Kim’s Acupuncture P.C. D.A.V. Chiropractic P.C. v. State Farm Mutual Automobile Insurance Company, 4 Misc 3d 141(A) (App. Term 9th&10th Jud. Dists. 2004); Siegel, M.D. v. Progressive Casualty Ins. Co., 6 Misc 3d 888 (NY Civ. Ct Kings County 2004); Vista Surgical Supplies, Inc. v. Utica Mutual Insurance Co., 7 Misc 3d 833 (NY Civ. Ct Kings County 2005); Inwood Hill Medical P.C. v. Allstate Insurance Company, 3 Misc 3d 1110(A) (NY Civ. Ct Kings County 2004); Multiquest, PLLC, 10 Misc 3d 1069(A), supra. In the instant case, the plaintiff did not introduce evidence of a “properly executed assignment”. Thus, plaintiff failed to prove a prima facie case of entitlement to no-fault benefits.

This Court is aware of the many summary judgment decisions that have found that the defendant waives its right to raise the deficiencies in the assignment of benefits forms when the denial was untimely and/or did not allege such defects. Nyack Hospital v. Metropolitan Property & Casualty Insurance Company, 16 AD3d 564 (2nd Dept. 2005); Nyack Hospital v. Encompass Insurance Company, 23 AD3d 535 (2nd Dept. 2005); Chiropractic Neurodiagnostics, P.C. v. Travelers Indemnity Co., 11 Misc 3d 644 (NY Civ. Ct New York County 2006); SZ Medical P.C. v. Country -Wide Insurance Company, 2006 NY Slip Op. 26194 (App. Term 2nd & 11th Jud. Dists. 2006); Delta [*3]Diagnostic Radiology, P.C. v. Progressive Casualty Insurance Co., 11 Misc 3d 136(A) (App. Term 2nd & 11th Jud. Dists. 2006); Hospital for Joint Diseases v. Allstate Insurance Company, 21 AD3d 348 (2nd Dept. 2005); Multiquest PLLC, 10 Misc 3d 1061(A), supra. However, those decisions discuss deficiencies in the forms. This Court is faced with rendering a decision in a bench trial of a no-fault action where there is lack of proof of an assignment. To be certain, a broad interpretation of a “technical defect” in the claim forms as discussed in Chiropractic Neurodiagnostics, P.C., supra, does not include the scenario where, at trial, there is no proof of an assignment at all.

Certainly, this Court is not being called upon to assume or speculate that an assignment existed in this matter. Accordingly it is,

ORDERED that, judgment should be entered in favor of defendant and the complaint is dismissed.

This constitutes the decision and order of the Court.

Dated: July 13, 2006 __________________________________

Genine D. Edwards, J.C.C.

Legal questions (2)

Questions 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.

Claimant's prima facie case at trial

Open the full map

What must a no-fault claimant prove at trial to make out its prima facie case for overdue benefits?

This decision: Insufficient at trial for another reason (MVAIC eligibility, assignment, eligibility for benefits)

Granted a directed verdict for the insurer after a bench trial because the provider introduced no evidence of a properly executed assignment of benefits, which was required before it could recover assigned benefits.

  • Appellate DivisionApp Div 3
  • Appellate TermApp Term 64
  • Trial courtsTrial 36
2008, Appellate Division: 1 decision (1 Other element missing)2006, Appellate Division: 1 decision (1 Other element missing)2010, Appellate Division: 1 decision (1 Business-record foundation lacking)2019, Appellate Term: 12 decisions (1 Proof sufficient, 11 Other element missing)2016, Appellate Term: 6 decisions (2 Proof sufficient, 4 Other element missing)2015, Appellate Term: 3 decisions (2 Proof sufficient, 1 Other element missing)2014, Appellate Term: 3 decisions (2 Proof sufficient, 1 Other element missing)2013, Appellate Term: 8 decisions (4 Proof sufficient, 1 Mailing/receipt not shown, 1 Business-record foundation lacking, 2 Other element missing)2012, Appellate Term: 1 decision (1 Mailing/receipt not shown)2011, Appellate Term: 2 decisions (1 Overdue not shown, 1 Other element missing)2010, Appellate Term: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2009, Appellate Term: 11 decisions (1 Proof sufficient, 1 Overdue not shown, 9 Business-record foundation lacking)2008, Appellate Term: 1 decision (1 Business-record foundation lacking)2006, Appellate Term: 3 decisions (2 Proof sufficient, 1 Business-record foundation lacking)2007, Appellate Term: 1 decision (1 Business-record foundation lacking)2017, Appellate Term: 3 decisions (3 Other element missing)2018, Appellate Term: 3 decisions (3 Other element missing)2020, Appellate Term: 2 decisions (1 Proof sufficient, 1 Other element missing)2022, Appellate Term: 1 decision (1 Other element missing)2025, Appellate Term: 1 decision (1 Other element missing)2017, Trial courts: 1 decision (1 Proof sufficient)2015, Trial courts: 3 decisions (2 Proof sufficient, 1 Other element missing)2013, Trial courts: 2 decisions (1 Business-record foundation lacking, 1 Other element missing)2011, Trial courts: 1 decision (1 Mailing/receipt not shown)2010, Trial courts: 4 decisions (4 Proof sufficient)2008, Trial courts: 5 decisions (2 Proof sufficient, 1 Overdue not shown, 2 Business-record foundation lacking)2007, Trial courts: 2 decisions (1 Proof sufficient, 1 Business-record foundation lacking)2006, Trial courts: 9 decisions (6 Proof sufficient, 1 Mailing/receipt not shown, 1 Business-record foundation lacking, 1 Other element missing)2004, Trial courts: 5 decisions (4 Proof sufficient, 1 Business-record foundation lacking)2005, Trial courts: 1 decision (1 Proof sufficient)2009, Trial courts: 1 decision (1 Proof sufficient)2021, Trial courts: 1 decision (1 Proof sufficient)2022, Trial courts: 1 decision (1 Other element missing)This decision
20052010201520202025
Proof sufficientMailing/receipt not shownOverdue not shownBusiness-record foundation lackingOther element missingThis decision

Of the 103 decisions on this question in the Second Department courts and the Court of Appeals, 35 (this one included) are in the same category.

Challenging the assignment of benefits

Open the full map

Could the insurer contest the validity of the provider’s assignment of benefits, or had it waived that defense?

This decision: Claimant lacks a valid assignment, or failed to prove one where the issue was preserved; claim fails or is not yet due

Dismissed the complaint after trial because the claimant offered no evidence of a properly executed assignment, an element it must prove, and waiver rulings about defective forms did not cover a total absence of proof of assignment.

  • Court of AppealsCt App 1
  • Appellate DivisionApp Div 12
  • Appellate TermApp Term 60
  • Trial courtsTrial 23
2007, Court of Appeals: 1 decision (1 Defense waived)2018, Appellate Division: 1 decision (1 Assignment sufficient)2013, Appellate Division: 1 decision (1 Defense waived)2011, Appellate Division: 1 decision (1 Defense waived)2007, Appellate Division: 2 decisions (2 Defense waived)2006, Appellate Division: 2 decisions (1 Defense waived, 1 Assignment defense upheld)2005, Appellate Division: 3 decisions (3 Defense waived)2004, Appellate Division: 1 decision (1 Defense waived)2025, Appellate Division: 1 decision (1 Assignment defense upheld)2016, Appellate Term: 1 decision (1 Defense waived)2014, Appellate Term: 1 decision (1 Defense waived)2013, Appellate Term: 1 decision (1 Defense waived)2010, Appellate Term: 5 decisions (3 Defense waived, 2 Assignment sufficient)2009, Appellate Term: 2 decisions (1 Defense waived, 1 Assignment sufficient)2008, Appellate Term: 4 decisions (2 Defense waived, 2 Assignment defense upheld)2007, Appellate Term: 3 decisions (1 Assignment sufficient, 1 Assignment defense upheld, 1 Issue of fact)2006, Appellate Term: 18 decisions (11 Defense waived, 6 Assignment sufficient, 1 Assignment defense upheld)2005, Appellate Term: 19 decisions (9 Defense waived, 10 Assignment sufficient)2004, Appellate Term: 6 decisions (1 Defense waived, 3 Assignment sufficient, 2 Issue of fact)2022, Trial courts: 1 decision (1 Defense waived)2020, Trial courts: 1 decision (1 Assignment defense upheld)2011, Trial courts: 2 decisions (1 Defense waived, 1 Assignment sufficient)2009, Trial courts: 1 decision (1 Defense waived)2007, Trial courts: 1 decision (1 Assignment sufficient)2006, Trial courts: 2 decisions (2 Assignment defense upheld)2005, Trial courts: 8 decisions (5 Defense waived, 2 Assignment sufficient, 1 Assignment defense upheld)2004, Trial courts: 7 decisions (3 Assignment sufficient, 4 Assignment defense upheld)This decision
20052010201520202025
Defense waivedAssignment sufficientAssignment defense upheldIssue of factThis decisionCites it or cited by itCited or followedDistinguished or limited

Of the 96 decisions on this question in the Second Department courts and the Court of Appeals, 14 (this one included) are in the same category. One decision in other departments that cites or is cited by this one is on the full map.

Cited in this decision

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

  • 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.
  • 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 Countrywide Ins. Co. (2005 NY Slip Op 25424)A billing provider may not amend fatally defective NF-3 forms at trial to replace independent-contractor designations with employee status.
  • Siegel v Progressive Cas. Ins. Co. (2004 NY Slip Op 24532)An assignment is an essential element of a provider's no-fault claim, and an insurer cannot waive its complete absence.
  • Vista Surgical Supplies, Inc. v Utica Mut. Ins. Co. (2005 NY Slip Op 25091)The provider's boilerplate affidavit failed to establish entitlement to summary judgment because it supplied no case-specific facts.
  • Nyack Hosp. v Metropolitan Prop. & Cas. Ins. Co. (2005 NY Slip Op 02235) DistinguishedThe insurer failed to prove mailing of its denial, and the denial was incomplete even if timely.
  • Nyack Hosp. v Encompass Ins. Co. (2005 NY Slip Op 08962) DistinguishedAn insurer's letters delaying payment pending its investigation do not toll the 30-day period for paying or denying a no-fault claim.
  • Chiropractic Neurodiagnostics, P.C. v Travelers Indem. Co. (2006 NY Slip Op 26049) DistinguishedAn insurer waives technical defects in an assignment of benefits by failing to object within 10 days after receipt.
  • Hospital for Joint Diseases v Allstate Ins. Co. (2005 NY Slip Op 06192) DistinguishedAn insurer waived assignment objections by failing to timely object to hospital forms or seek verification of the assignments.

Cited by

  • Matter of South Nassau Community Hosp. v Avis Budget Group, Inc. (2025 NY Slip Op 05954)The provider's petition to vacate a master award based on lack of standing was denied because the determination had a rational basis.
  • ENS Med., P.C. v Nationwide Ins. Co. (2026 NY Slip Op 26033)A provider may arbitrate a claim for lost earnings incurred in attending an insurer-demanded EUO. Insurance Law § 5106 (b) encompasses reimbursement disputes arising from claim verification, and 11 NYCRR 65-3.5 (e) requires reimbursement.

Similar decisions

  • Multiquest PLLC v Allstate Ins. Co. (2005 NY Slip Op 52209(U))A billing provider cannot recover assigned no-fault benefits for services rendered by an independent contractor rather than the provider or its employees.
  • A.B. Med. Servs. PLLC v Peerless Ins. Co. (2006 NY Slip Op 26318)A provider need not prove assignment validity where the insurer neither sought verification nor raised an assignment defect in its denials.
  • Advanced Med. Rehabilitation, P.C. v Travelers Prop. Cas. Ins. Co. (2004 NY Slip Op 50141(U))The provider's trial proof failed to establish an admissible assignment or mailing of its claims, requiring dismissal of the action.
  • A.B. Med. Servs. PLLC v Farm Family Cas. Ins. Co. (2004 NY Slip Op 24346)A denial's timeliness is measured by its mailing date, not the date printed on the denial form.
  • A.B. Med. Servs. PLLC v American Tr. Ins. Co. (2005 NYSlipOp 51316(U))The insurer failed to prove mailing of IME notices to the assignors, defeating its nonappearance defense to summary judgment.
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