A.M. Med. Servs., P.C. v Liberty Mut. Ins. Co.

[*1] A.M. Med. Servs., P.C. v Liberty Mut. Ins. Co. 2006 NY Slip Op 51044(U) [12 Misc 3d 130(A)] Decided on May 30, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 30, 2006
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT:: PESCE, P.J., RIOS and BELEN, JJ
2005-1161 Q C.

A.M. Medical Services, P.C., as Assignee of Volodymyr Yaroshenko, Appellant,

against

Liberty Mutual Insurance Co., Respondent.

Appeal from an order of the Civil Court of the City of New York, Queens County (Edgar Walker, J.), entered March 15, 2005. The order conditionally granted defendant's motion to strike the complaint, denied plaintiff's cross motion for summary judgment and awarded defendant $50 in costs.

Appeal from so much of the order as conditionally granted defendant's motion to strike the complaint and awarded it $50 in costs dismissed.

Order, insofar as it denied plaintiff's cross motion for partial summary judgment, affirmed without costs.

In this action to recover assigned first-party no-fault benefits, defendant moved for an order striking the complaint or, in the alternative, either precluding plaintiff from offering testimony at trial or compelling plaintiff to respond to its demand for a bill of particulars and demand for discovery and inspection. Plaintiff cross-moved for summary judgment, which motion defendant opposed. Thereafter, the court below denied plaintiff's cross motion for summary judgment, granted defendant's motion to strike, "without opposition," unless plaintiff complies with defendant's combined demands, within (60) days, and awarded defendant $50 in costs.

A review of the record indicates that plaintiff failed to establish its prima facie entitlement to summary judgment since the claim forms stated that the named treating providers were independent contractors, for whom plaintiff billing provider is not entitled to recover direct payment of assigned no-fault benefits (see e.g. 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]). [*2]Plaintiff did not cure this defect by annexing copies of W-2 forms for said health care providers to its cross motion, since the W-2s do not conclusively establish that the health care providers were employed by plaintiff on the date the services were rendered. Consequently, plaintiff's cross motion for partial summary judgment was properly denied.

Furthermore, since plaintiff did not submit any papers in opposition to defendant's motion, said motion was granted on default and no appeal lies therefrom (see Super Laundry Equip. Corp. v Ditmar Bakr Laundromat, 232 AD2d 476 [1996]; Smith-Reyes v Moreland, 5 Misc 3d 132[A], 2004 NY Slip Op 51424[U] [App Term, 2d & 11th Jud Dists]). Accordingly, the appeal from so much of the order as conditionally granted defendant's motion and awarded defendant $50 costs is dismissed.

Pesce, P.J., Rios and Belen, JJ., concur.
Decision Date: May 30, 2006