Cosmopolitan Med. Acupuncture Servs., P.C. v Allstate Ins. Co. (2006 NY Slip Op 51470(U))

APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

In consolidated appeals, plaintiffs, as limited by their brief, appeal from three orders of the Civil Court, Bronx County (Sharon Aarons, J.), dated March 8, 2005, and four orders (same court and Judge), dated April 25, 2005, which, inter alia, granted defendant’s cross motions for summary judgment dismissing the complaints. Defendant cross appeals from two orders (same court and Judge), dated April 25, 2005, which denied its cross motions for summary judgment dismissing the complaints as against plaintiffs Maple Medical Acupuncture Services, P.C., a/a/o Jose Villanueva and Continental Medical Acupuncture Services, P.C., a/a/o Maria Tejeda.

PER CURIAM:

Orders (Sharon Aarons, J.), dated March 8, 2005 and April 25, 2005, which granted defendant’s cross motions for summary judgment, modified to deny defendant’s cross motions, and as so modified, affirmed, without costs; orders (Sharon Aarons, J.) dated April 25, 2005, which denied defendant’s cross motions for summary judgment, affirmed, without costs.

In these nine actions, consolidated for purposes of appeal, plaintiffs health care providers seek to recover assigned first-party no-fault benefits. Defendant moved for summary judgment in each action based on the identical defense that the treating acupuncturists were independent contractors rather than employees of plaintiffs providers.

Whether an employer-employee relationship exists generally is a question of fact and turns on the “degree of control exercised by a purported employer over the results produced by the work and the means used to achieve those results” (Cipriani Group, 1 NY3d 193, 198 [2003]; see also Matter of Charles A. Field Delivery Serv., Inc., 66 NY2d 516 [1985]). Here, summary judgment is unwarranted since issues of fact exist as to whether the acupuncturists who rendered the services underlying plaintiffs claims were employees or independent contractors. Contrary to defendant’s contention, plaintiffs’ letter dated April 1, 2002 is not dispositive of the issue (cf. Antell, D.O., PC v New York Cent. Mut. Fire Ins. Co., 11 Misc 3d 137A [2006]). While the reporting of annual pay on an IRS 1099 form may be significant in assessing whether the [*2]acupuncturists were independent contractors or employees, it is only one of the relevant factors in assessing the relationship which existed between plaintiffs and the acupuncturists (see Bynog v Cipriani Group, 1 NY3d at 198).

This constitutes the decision and order of the court.
I concurI concurI concur
Decision Date: July 27, 2006