Plaintiff appeals from an order of the Civil Court of the City of New York, New York County (Debra Rose Samuels, J.), dated June 10, 2010, which granted defendant's motion for summary judgment dismissing the complaint.
Stephen Matrangalo, DC, PC
Allstate Ins. Co.
Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: Schoenfeld, J.P., Hunter, Jr., J.
Order (Debra Rose Samuels, J.), dated June 10, 2010, reversed, without costs, motion denied and complaint reinstated.
Plaintiff, a chiropractic practice, commenced this action to recover assigned first-party no-fault benefits for services rendered to its assignor, who sustained injuries in a January 2009 automobile accident. The assignor was referred to plaintiff by a non-party practitioner. Defendant-insurer moved for summary judgment dismissing the complaint pursuant to Public Health Law § 238-a, claiming that plaintiff may not recover for the services rendered to the assignor because the referring practitioner had a "financial relationship" with plaintiff (see Public Health Law § 238-a[a], [b]). Civil Court granted the motion, and we now reverse.
Public Health Law § 238-a prohibits a practitioner from making a referral to a health care provider where the referring practitioner (or immediate family member of such practitioner) has a "financial relationship" with the health care provider (Public Health Law § 238-a[a]). A "financial relationship" is defined in section 238(3) of the Public Health Law as "an ownership interest, investment interest or compensation arrangement." Critically, a "compensation arrangement" means "any arrangement involving any remuneration between a practitioner, or immediate family member, and a health care provider" (Public Health Law § 238-a[a]), but does not include "payments for the rental or lease of office space" if there is a lease that meets specific enumerated requirements, i.e., is in writing, for a term of at least one year, with a rent consistent with fair market value and not based upon the volume or value of any referrals, and would be commercially reasonable even if no referrals were made (Public Health Law § 238-a[b][i]).
The evidence submitted by defendant in support of its motion failed to establish, prima facie, that there was any "financial relationship" between plaintiff and the referring practitioner. No allegation is made that there was any "ownership interest" or "investment interest" between plaintiff and the referring practitioner. Although defendant submitted some unparticularized evidence indicating that plaintiff leased unspecified office space from various unnamed physicians in 2007 -- two years prior to the underlying referral -- defendant's limited submission failed to establish that there was any "compensation arrangement" in general or any "payments for the rental or lease of office space" in particular, between plaintiff and the referring practitioner. Since defendant failed to meet its initial burden of establishing as a matter of law its defense pursuant to Public Health Law § 238-a, the motion for summary judgment should have been denied regardless of the sufficiency of plaintiff's opposing papers (see Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT. Decision Date: April 05, 2011
© 1992-2011 VersusLaw ...