Gentle Care Acupuncture, P.C. v Raz Acupuncture, P.C.

[*1] Gentle Care Acupuncture, P.C. v Raz Acupuncture, P.C. 2009 NY Slip Op 52274(U) [25 Misc 3d 136(A)] Decided on November 5, 2009 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 5, 2009
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : MOLIA, J.P., LaCAVA and IANNACCI, JJ
2008-1977 S C.

Gentle Care Acupuncture, P.C. as assignee of ROBERTO SOSA, Plaintiff, -and-

against

RAZ Acupuncture, P.C. as assignee of JULES FRANTZKY, Respondent, REPUBLIC WESTERN INSURANCE COMPANY, Appellant.

Appeal from an order of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered September 15, 2008. The order, insofar as appealed from as limited by the brief, denied so much of defendant's motion for summary judgment as sought to dismiss the third and fourth causes of action, asserted by plaintiff Raz Acupuncture, P.C.

ORDERED that the order, insofar as appealed from, is affirmed without costs.

In this action by providers to recover assigned first-party no-fault benefits, defendant, insofar as is relevant to this appeal, moved for summary judgment dismissing the third and fourth causes of action, which pertained to plaintiff Raz Acupuncture, P.C., on the ground that the services at issue had been rendered by an independent contractor. The District Court denied this branch of defendant's motion for summary judgment, finding that defendant had failed to make a prima facie showing that the treating acupuncturist was an independent contractor. This appeal by defendant ensued.

"[W]here medical services are rendered by an independent contractor, the billing provider may not maintain an assigned first-party no-fault action, since it is not a provider' within the [*2]meaning of the insurance regulations, and hence no-fault benefits are not assignable to it (Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2005]). Further, such defense is nonwaivable and not subject to the preclusion rule (see Matter of Medical Socy. of State of NY v Serio, 100 NY2d 854 [2003]; Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52, supra)" (M.G.M. Psychiatry Care P.C. v Utica Mut. Ins. Co., 12 Misc 3d 137[A], 2006 NY Slip Op 51286[U] [App Term, 2d & 11th Jud Dists 2006]).

In the instant case, since the claim forms do not disclose the relationship between Raz Acupuncture, P.C. and the treating acupuncturist, the claim forms are not dispositive on the issue of whether the treating acupuncturist was an independent contractor or an employee of Raz Acupuncture, P.C. Moreover, the acupuncturist's affidavit, relied upon by defendant, was insufficient to prove, prima facie, that the acupuncturist was an independent contractor (see Bhanti v Brookhaven Mem. Hosp. Med. Ctr., 260 AD2d 334 [1999]). As a result, the branch of defendant's motion seeking summary judgment upon the third and fourth causes of action was properly denied, and the order, insofar as appealed from, is affirmed.

Molia, J.P., LaCava and Iannacci, JJ., concur.
Decision Date: November 05, 2009