March 1, 2005

A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 51111(U))

Headnote

The court considered an appeal by plaintiffs, A.B. Medical Services PLLC and Royalton Chiropractic P.C., seeking to recover first-party no-fault benefits for medical services rendered to their assignors. A.B. Medical Services PLLC, in particular, sought the sum of $8,182.88. The main issue decided was whether A.B. Medical Services PLLC was entitled to the no-fault benefits as the billing provider, even though the medical services were rendered by an independent contractor, as indicated on the NF-3 claim forms. The holding of the court was that A.B. Medical Services PLLC was not entitled to recover "direct payment" of assigned no-fault benefits from the defendant insurer, as it was not the provider of the instant services within the meaning of the relevant section, despite being a licensed provider of health care services. Therefore, the complaint as to plaintiff A.B. Medical Services PLLC was dismissed.

Reported in New York Official Reports at A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 51111(U))

A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co. (2005 NYSlipOp 51111(U)) [*1]

A.B. Med. Servs. PLLC v New York Cent. Mut. Fire Ins. Co.

2005 NYSlipOp 51111(U)

Decided on March 1, 2005

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This opinion is uncorrected and will not be published in the printed Official Reports.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 March 1, 2005

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: March 1, 2005 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM : 2nd and 11th JUDICIAL DISTRICTS PRESENT :PESCE, P.J., PATTERSON and RIOS, JJ.
2003-1792 K C

A.B. Medical Services PLLC ROYALTON CHIROPRACTIC P.C. a/a/o Svetlana Makaritcheva and Boris Bobyr, Appellants,
against
New York Central Mutual Fire Insurance Company, Respondent.

Appeal by plaintiffs, as limited by their brief, from so much of an order of the Civil Court, Kings County (S. Krauss, J.), entered on October 29, 2003, as denied the motion for summary judgment by plaintiff A.B. Medical Services PLLC, seeking the sum of $8,182.88.

Order, insofar as appealed from by A.B. Medical Services PLLC, unanimously modified by providing that, upon searching the record, summary judgment is awarded
to defendant dismissing the complaint as to plaintiff A.B. Medical Services PLLC; as so modified, affirmed without costs.

Appeal by plaintiff Royalton Chiropractic P.C. unanimously dismissed.

Plaintiffs A.B. Medical Services PLLC (A.B. Medical) and Royalton Chiropractic P.C. commenced the instant action seeking to recover first-party no-fault benefits for medical services rendered to their assignors in the sum of $10,394.42. In their brief on appeal, plaintiffs have withdrawn the claims of Royalton Chiropractic P.C. and have limited the appeal to the claims of A.B. Medical for the sum of $8,182.88.

In support of its motion for summary judgment, A.B. Medical annexed the NF-3 claim forms which identified it as the “provider.” The item calling for information where the “treating provider is different than [the] billing provider,” indicated that the licensed “treating provider” was Desh D. Sachdev, M.D., and that the “business relation” was that of “independent contractor.” In opposition to the motion, defendant argued that it properly denied A.B. Medical’s claims on the ground that the medical provider of services was an independent contractor, and that A.B. Medical was not entitled to recover no-fault benefits as a licensed billing provider of those services.

The applicable insurance regulations governing “direct payments” of no-fault benefits by the insurer provide that “an insurer shall pay benefits . . . directly to the applicant or . . . upon assignment by the applicant . . . [to] the providers of services” (11 NYCRR 65.15 [j] [1], now 11 NYCRR 65-3.11 [a]). Pursuant to 11 NYCRR 65.15 (j) (1), a provider’s entitlement to seek [*2]recovery of no-fault benefits directly from the insurer is contingent upon an assignment of such benefits, and the assignment must be made to the “providers of services.” The section further circumscribes the assignability of no-fault benefits to an assignment made “by the applicant” to the providers of services. There is no authorization under this section, or elsewhere in the insurance regulations, entitling the assignment of no-fault benefits by a provider.

In the instant action, it is uncontroverted that both A.B. Medical and Dr. Sachdev are licensed providers of health care services, and as such, both may be independently entitled to recover no-fault benefits for medical services they rendered. A.B. Medical, as the billing provider seeking recovery of assigned no-fault benefits for medical services which were not performed by it or its employees, but by an independent contractor identified as the “treating provider” on NF-3 claim forms, is not a “provider” of the instant services within the meaning of section 65.15 (j) (1) (now 11 NYCRR 65-3.11 [a]), and is hence not entitled to recover “direct payment” of assigned no-fault benefits from the defendant insurer.

Our decision is consistent with the Insurance Department’s interpretation of the insurance regulations (see informal opinions dated February 21, 2001, February 5, 2002, March 11, 2002, and October 21, 2003; see also Rockaway Blvd. Med. P.C. v Progressive Ins., 4 Misc 3d 444 [Civ Ct, Queens County 2004]) which is entitled to great deference (see Matter of Medical Malpractice Ins. Assn. v Superintendent of Ins. of State of N.Y., 72 NY2d 753 [1988], cert denied 490 US 1080 [1989]).

Accordingly, the order of the court is hereby modified by providing that, upon searching the record, summary judgment is awarded defendant dismissing the complaint as to plaintiff A.B. Medical.

Inasmuch as no issue is raised by the remaining appellant, the appeal with respect to it is dismissed (see Praeger v Praeger, 162 AD2d 671 [1990]).
Decision Date: March 01, 2005