July 3, 2006

Boai Zhong Yi Acupuncture Servs. P.C. v Allstate Ins. Co. (2006 NY Slip Op 51288(U))

Headnote

The relevant facts considered by the court were that the plaintiff, Boai Zhong Yi Acupuncture Services P.C., sought to recover first-party no-fault benefits for health care services rendered to its assignor, Stefaniya Martynuk, and moved for summary judgment. The plaintiff submitted three NF-3 forms, but on two of the forms, the required information was not completed. On the third form, the treating provider was identified as an independent contractor. The main issue decided was whether a billing provider who seeks to recover no-fault benefits for services rendered by an independent contractor treating provider is entitled to recover "direct payment" of assigned no-fault benefits from the insurer. The court held that the plaintiff's motion for summary judgment was properly denied due to the factual issues raised by the plaintiff's submissions, and therefore affirmed the order without costs. The court did not address any other issues in the case.

Reported in New York Official Reports at Boai Zhong Yi Acupuncture Servs. P.C. v Allstate Ins. Co. (2006 NY Slip Op 51288(U))

Boai Zhong Yi Acupuncture Servs. P.C. v Allstate Ins. Co. (2006 NY Slip Op 51288(U)) [*1]

Boai Zhong Yi Acupuncture Servs. P.C. v Allstate Ins. Co.

2006 NY Slip Op 51288(U) [12 Misc 3d 137(A)]

Decided on July 3, 2006

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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 3, 2006

SUPREME COURT OF THE STATE OF NEW YORK

APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS

PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2005-1172 K C.

Boai Zhong Yi Acupuncture Services P.C. A/A/O STEFANIYA MARTYNUK, Appellant,
against
Allstate Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Kings County

(Eileen Nadelson, J.), entered March 15, 2005. The order denied plaintiff’s motion for summary judgment.

Order affirmed without costs.

In this action to recover first-party no-fault benefits for health care services rendered to its assignor, plaintiff moved for summary judgment. In support of its motion for summary judgment on three claims, the plaintiff submitted the three NF-3 forms. Number 16 of each form states:

“If treating provider is different that [sic] billing provider complete the following.”

On two of the forms “the following” was not completed. On the third form, Number 16 identifies Dixu Gd Gao as the treating provider, and under the “business relationship” category, the box “Independent Contractor” is checked. 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 health care services [*2]rendered within the meaning of 11 NYCRR 65.15 (j) (1) (now 11 NYCRR 65-3.11 [a]) and is therefore not entitled to recover “direct payment” of assigned no-fault benefits from the insurer (Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52 [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]; see also Antell v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 137[A], 2006 NY Slip Op 50521[U] [App Term, 1st Dept]; A.B. Med. Servs. PLLC v Liberty Mut. Ins. Co., 9 Misc 3d 36 [App Term, 2d & 11th Jud Dists 2005]). In light of [*3]
the factual issues raised by plaintiff’s submissions, the plaintiff’s motion for summary judgment was properly denied. In view of the foregoing, we reach no other issues.

Weston Patterson, J.P., and Belen, J., concur.

Golia, J., concurs in a separate memorandum.

Golia, J., concurs with the result only, in the following memorandum:

While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.

Decision Date: July 3, 2006