Bedford Park Neurology, P.C. v New York Cent. Mut. Fire Ins. Co. (2009 NY Slip Op 52634(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, Queens County (Diane A. Lebedeff, J.), entered September 17, 2008. The order, insofar as appealed from, denied the branch of defendant’s motion seeking to dismiss so much of plaintiff’s complaint as sought to recover upon a claim form seeking the sum of $2,992.

ORDERED that the order, insofar as appealed from, is reversed without costs and the branch of defendant’s motion seeking to dismiss so much of plaintiff’s complaint as sought to recover upon a claim form seeking the sum of $2,992 is granted.

In this action to recover assigned first-party no-fault benefits, defendant moved, insofar as is relevant to this appeal, to dismiss so much of plaintiff’s complaint as sought to recover upon a claim form seeking the sum of $2,992, on the ground that plaintiff lacked standing to recover upon said claim because the claim form submitted to defendant identified only a physician as the provider and it neither referenced plaintiff, a professional services corporation, to whom the assignor had assigned his benefits, nor set forth the provider’s relationship to plaintiff. In denying defendant this relief, the Civil Court noted that the claim form contained a handwritten notation, “Bedford Park [sic],” in parentheses, alongside the name of the physician, in the portion of the form labeled provider, and plaintiff had annexed a copy of the assignment in favor of plaintiff as an exhibit to the cross motion brought by plaintiff. Defendant appeals from so much of the order as denied the branch of its motion seeking to dismiss plaintiff’s claim seeking the sum of $2,992.

The claim form at issue sought to recover payment on behalf of the physician who rendered the services and not on behalf of plaintiff. Indeed, while the handwritten notation on the claim form refers parenthetically to “Bedford Park Neurology,” this is not the name of plaintiff professional corporation. Consequently, plaintiff’s belated attempt to establish that the claimant physician was either an employee or principal of plaintiff, and that the claim form contains misinformation, is unavailing (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 70 [App Term, 2d & 11th Jud Dists 2008]). Plaintiff failed to submit a claim form which entitled it to payment, and may not correct the allegedly erroneous claim form once [*2]litigation has commenced (id.; cf. Davydov v Progressive Ins. Co., 25 Misc 3d 19 [App Term, 2d, 11th & 13th Jud Dists 2009]). Accordingly, the branch of defendant’s motion seeking to dismiss so much of plaintiff’s complaint as sought to recover upon a claim form seeking the sum of $2,992 should have been granted (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 70).

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: December 23, 2009