MEDICAL SERVICES PLLC v. LIBERTY MUTUAL INSURANCE COMPANY

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Supreme Court, Appellate Term, New York.

A.B. MEDICAL SERVICES PLLC, D.A.V. Chiropractic P.C., Daniel Kim's Acupuncture P.C., G.A. Physical Therapy P.C., a/a/o Norma J. Evans, Appellants-Respondents, v. LIBERTY MUTUAL INSURANCE COMPANY, Respondent-Appellant.

Decided: July 07, 2005

Present:  PESCE, P.J., RIOS and BELEN, JJ. Amos Weinberg, Great Neck, for appellants-respondents. Troy & Troy, Lake Ronkonkoma (Patrick J. Morganelli of counsel), for respondent-appellant.

Appeal by plaintiffs from so much of an order of the Civil Court, Kings County (E. Spodek, J.), entered on April 28, 2004, as denied the motion for summary judgment by plaintiff A.B. Medical Services PLLC, seeking the sum of $3,528.27.   Cross appeal by defendant from so much of the same order as denied its motion for summary judgment dismissing the complaint as to A.B. Medical Services PLLC.

Order insofar as appealed from unanimously modified by granting the defendant's cross motion to dismiss the complaint as to plaintiff A.B. Medical Services PLLC;  as so modified, affirmed without costs.

Appeal by plaintiffs DAV Chiropractic P. C., Daniel Kim's Acupuncture P.C. and G.A. Physical Therapy P.C. unanimously dismissed.

In this action to recover assigned first party no-fault benefits, the NF-3 claim forms attached by plaintiff A.B. Medical Services PLLC (A.B. Medical) in support of its motion for summary judgment, provided, under the item calling for information where the “treating provider is different than [the] billing provider,” that the licensed “treating provider” was Dr. Ronald Collins, M.D., and that the “business relationship” was that of “independent contractor.”

The applicable insurance regulations governing “direct payments” of no-fault benefits by the insurer provide that “an insurer shall pay benefits ․ directly to the applicant or ․ upon assignment by the applicant ․ [to] the providers of services” (11 NYCRR 65.15[j][1], now 11 NYCRR 65-3.11[a] ).   Pursuant to 11 NYCRR 65.15(j)(1), a provider's entitlement to seek recovery of no-fault benefits directly from the insurer is contingent upon an assignment of such benefits, and the assignment must be made to the “providers of services.”   The section further circumscribes the assignability of no-fault benefits to an assignment made “by the applicant” to the providers of services.   There is no authorization under this section, or elsewhere in the insurance regulations, entitling the assignment of no-fault benefits by a provider.

It is undisputed on the record that both A.B. Medical and Dr. Collins are licensed providers of health care services, and as such, both may be independently entitled to recover no-fault benefits for medical services they rendered.   A.B. Medical, as the billing provider seeking recovery of assigned no-fault benefits for medical services which were not performed by it or its employees, but by an independent contractor identified as the “treating provider” on NF-3 claim forms, is not a “provider” of the instant services within the meaning of section 65.15(j)(1) (now 11 NYCRR 65-3.11[a] ), and is hence not entitled to recover “direct payment” of assigned no-fault benefits from the defendant insurer.   Accordingly, the order of the court is hereby modified by providing that defendant's cross motion for summary judgment dismissing the complaint as to plaintiff A.B. Medical is granted.

Our decision is consistent with the Insurance Department's interpretation of the insurance regulations (see informal opinions dated February 21, 2001, February 5, 2002, March 11, 2002, and October 21, 2003) which are entitled to great deference (see Matter of Medical Malpractice Ins. Assn. v. Superintendent of Ins. of State of N.Y., 72 N.Y.2d 753, 537 N.Y.S.2d 1, 533 N.E.2d 1030 [1988], cert. denied 490 U.S. 1080, 109 S.Ct. 2100, 104 L.Ed.2d 661 [1989] ).

Inasmuch as no issue is raised by the remaining appellants, the appeal with respect to them is dismissed (see Praeger v. Praeger, 162 A.D.2d 671, 557 N.Y.S.2d 394 [1990] ).