Health & Endurance Med., P.C. v Travelers Prop. Cas. Ins. Co. (2011 NY Slip Op 51120(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, Kings County (Alice Fisher Rubin, J.), entered November 4, 2009. The order denied defendant’s motion to dismiss the complaint.

ORDERED that the order is reversed, without costs, and defendant’s motion to dismiss the complaint is granted.

In this action by a provider to recover assigned first-party no-fault benefits, after issue was joined, plaintiff moved for summary judgment and defendant purported to cross-move for summary judgment dismissing the complaint on the ground that, among other things, plaintiff could not recover for services rendered by an independent contractor. The Civil Court (Genine D. Edwards, J.) denied plaintiff’s motion and denied defendant’s purported cross motion on the ground that “plaintiff was not properly noticed of the intent to cross move for summary judgment.” Thereafter, defendant moved, pursuant to CPLR 3211 (a) (7), to dismiss the complaint based upon the fact that the services were rendered by an independent contractor. The Civil Court denied defendant’s motion.

Contrary to plaintiff’s contention, defendant was permitted to move to dismiss on the ground that the complaint fails to state a cause of action notwithstanding defendant’s service of an answer (CPLR 3211 [a] [7]; [e]). Plaintiff’s claim forms state that the services at issue were rendered by an independent contractor. Where services are rendered by an independent contractor, the independent contractor is the provider entitled to the payment of the assigned first-party no-fault benefits (see Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2005]). This court has held that a statement in a claim form, that the services were provided by an independent contractor, may not be corrected once litigation has commenced, even if the statement was erroneous (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 70 [App Term, 2d, 11th & 13th Jud Dists 2009]). Thus, defendant has conclusively demonstrated that plaintiff is not the provider entitled to payment of the assigned first-party no-fault benefits (A.M. Med. Servs., P.C., 22 Misc 3d 70; Rockaway [*2]
Blvd. Med. P.C., 9 Misc 3d 52), and defendant’s motion to dismiss for failure to state a cause of action should have been granted (see CPLR 3211 [a] [7]; see generally Sokol v Leader, 74 AD3d 1180 [2010]).

Steinhardt, J.P., Golia and Rios, JJ., concur.
Decision Date: June 14, 2011