Opinion
2006-31 Q C.
Decided December 11, 2006.
Appeal from an order of the Civil Court of the City of New York, Queens County (Bernice Daun Siegal, J.), entered September 30, 2005. The order denied plaintiff's motion for partial summary judgment.
Order affirmed without costs.
PRESENT: PESCE, P.J., GOLIA and BELEN, JJ.
In this action to recover first-party no-fault benefits for medical services rendered to its assignor, plaintiff moved for summary judgment. Three of plaintiff's five claim forms indicate that the treating health care providers were independent contractors. Where 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 65-3.11 (a) and is therefore not entitled to recover "direct payment" of assigned no-fault benefits from the insurer ( see Boai Zhong Yi Acupuncture Servs. P.C. v Allstate Ins. Co., 12 Misc 3d 137 [A], 2006 NY Slip Op 51288[U] [Appq Term, 2d 11th Jud Dists]; Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52 [App Term, 2d 11th Jud Dists 2005]). The remaining two claim forms have "N/A" typed in the box in which the business relationship of the treating provider was to be provided. Such lack of specificity does not establish plaintiff's prima facie entitlement to summary judgment as a matter of law inasmuch as it fails to exclude all triable issues of fact. Accordingly, plaintiff's motion for partial summary judgment was properly denied.
We pass on no other issue.
Pesce, P.J., and Belen, J., concur.
Golia, J., concurs in a separate memorandum.
While I agree with the ultimate disposition in the decision reached by the majority, I wish to emphasize that I am constrained to agree with certain propositions of law set forth in cases cited therein which are inconsistent with my prior expressed positions and generally contrary to my views.