E. Coast Acupuncture
v.
N.Y. Cent. Mut. Ins

Appellate Term of the Supreme Court of New York, Second DepartmentFeb 21, 2008
2008 N.Y. Slip Op. 50344 (N.Y. Misc. 2008)

2006-80 Q C.

Decided February 21, 2008.

Appeal from an order of the Civil Court of the City of New York, Queens County (Anna Culley, J.), entered August 12, 2005, deemed from a judgment entered on November 29, 2005 (see CPLR 5501 [c]). The judgment, entered pursuant to the August 12, 2005 order granting plaintiff's motion for summary judgment, awarded plaintiff the principal sum of $2,404.30.

Judgment reversed without costs, order granting plaintiff's motion for summary judgment vacated, plaintiff's motion for summary judgment granted to the extent of awarding it partial summary judgment on its claim for $270, and matter remanded to the court below for a calculation of statutory interest and attorney's fees thereon and for all further proceedings on the remaining claims.

PRESENT: PESCE, P.J., and RIOS, J.


In this action by a provider to recover assigned first-party no-fault benefits, plaintiff moved for summary judgment. The court below granted plaintiff's motion for summary judgment and the instant appeal by defendant ensued.

Since defendant raised no issue on appeal regarding plaintiff's establishment of its prima facie case, we do not pass on the propriety of the determination of the court below with respect thereto.

The NF-3 forms submitted in support of plaintiff's motion for summary judgment regarding two of its claims ($630 and $694.30) identified the treating provider as Kimer Arkady and under the "Business Relation" category therein, a "V" was placed in the box labeled "Independent Contractor." It is well settled that "[w]here 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 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. . . ." ( Boai Zhong Yi Acupuncture Servs. P.C. v Allstate Ins. Co., 12 Misc 3d 137 [A], 2006 NY Slip Op 51288[U] [App Term, 2d 11th Jud Dists 2006] [citations omitted]). Consequently, plaintiff was not entitled to summary judgment on its claims for the sums of $630 and $694.30.

Furthermore, plaintiff was not entitled to summary judgment on its claim for the sum of $810. Defendant established that this claim was timely denied on the ground, inter alia, that the fees charged for the services provided were excessive and not in accordance with the Workers' Compensation fee schedule. Accordingly, said defense raised a triable issue of fact ( see A.B. Med. Servs., PLLC v American Tr. Ins. Co. ,15 Misc 3d 132[A], 2007 NY Slip Op 50680[U] [App Term, 2d 11th Jud Dists 2007]; Triboro Chiropractic Acupuncture P.L.L.C. v New York Cent. Mut. Fire Ins. Co. , 7 Misc 3d 138[A], 2005 NY Slip Op 50856[U] [App Term, 2d 11th Jud Dists 2005]).

Turning to plaintiff's claim for the sum of $270, since defendant failed to pay or deny the claim within the 30-day prescribed period (Insurance Department Regulations [ 11 NYCRR] § 65-3.8 [c]) and failed to establish that such period was extended by its issuance of a timely request for verification (Insurance Department Regulations [11 NYCRR] § 65-3.5 [a], [b]), defendant was precluded from raising most defenses ( see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274, 282). While defendant was not precluded from raising its defense that the assignor's injuries were not causally related to the accident despite its untimely denial ( see Executive MRI Imaging, P.C. v New York Cent. Mut. Fire Ins. Co., 13 Misc 3d 140 [A], 2006 NY Slip Op 52250[U] [App Term, 2d 11th Jud Dists 2006]), the affidavit submitted by defendant's investigator was insufficient to demonstrate that defendant's defense of a lack of nexus between the accident and the injuries sustained by plaintiff's assignor was based upon a "founded belief that the alleged injur[ies] do not arise out of an insured incident" ( Central Gen. Hosp. v Chubb Group of Ins. Cos., 90 NY2d 195, 199). Thus, defendant failed to establish the existence of a triable issue of fact with respect to this claim.

Accordingly, plaintiff's motion for summary judgment is granted to the extent of awarding it partial summary judgment on the $270 claim, and the matter is remanded to the court below for a calculation of statutory interest and attorney's fees thereon and for all further proceedings on the remaining claims.

Pesce, P.J., and Rios, J., concur.