The Rogak Report: 01 May 2008 ** No Fault - Independent Contractors **
NO FAULT DEFENSE THAT SERVICES WERE PERFORMED BY INDEPENDENT CONTRACTOR IS NOT WAIVED BY UNTIMELY DENIAL
Health & Endurance Med., P.C. a/a/o Arroyo Millie v. Liberty Mut. Ins. Co. 2008 NYSlipOp 50864(U) Decided on April 14, 2008 Appellate Term, Second Department Edited by Lawrence N. Rogak
In this no-fault suit, plaintiff moved for summary judgment and defendant cross-moved for summary judgment on the ground that plaintiff was seeking to recover for services performed by an independent contractor. The Civil Court, Kings County, denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint. This appeal by plaintiff ensued.
The Appellate Term held, "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 medical services rendered within the meaning of Insurance Department Regulations (11 NYCRR) § 65-3.11 (a) and is therefore not entitled to recover 'direct payment' of assigned no-fault benefits from the defendant insurer (see Health & Endurance Med. P.C. v State Farm Mut. Auto. Ins. Co., 12 Misc 3d 134[A], 2006 NY Slip Op 51191[U] [App Term, 2d & 11th Jud Dists 2006]; Craig Antell, D.O., P.C. v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50521[U] [App Term, 1st Dept 2006]; A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 9 Misc 3d 36 [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 2005])."
"In the case at bar, the claim forms submitted by plaintiff in support of its motion for summary judgment state that the treating professional was an independent contractor and, in opposition to defendant's cross motion, plaintiff concedes that the services were rendered by an independent contractor. Contrary to plaintiff's contention, said defense is nonwaivable and not subject to the preclusion rule ( M.G.M. Psychiatry Care P.C. v Utica Mut. Ins. Co., 12 Misc 3d 137[A], 2006 NY Slip Op 51286[U] [App Term, 2d & 11th Jud Dists 2006]; Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2005]). As a result, the court properly denied plaintiff's motion for summary judgment and granted defendant's cross motion for summary judgment dismissing the complaint. In light of the foregoing, we reach no other issue."