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The independent contractor "defense" is sufficient to non-suit a plaintiff under CPLR 3211(a)(7)June 25, 2011
Health & Endurance Med., P.C. v Travelers Prop. Cas. Ins. Co., 2011 NY Slip Op 51120(U)(App. Term 2d Dept. 2011)
Contrary to plaintiff’s contention, defendant was permitted to move to dismiss on the ground that the complaint fails to state a cause of action notwithstanding defendant’s service of an answer (CPLR 3211 [a] [7]; [e]). Plaintiff’s claim forms state that the services at issue were rendered by an independent contractor. Where services are rendered by an independent contractor, the independent contractor is the provider entitled to the payment of the assigned first-party no-fault benefits (see Rockaway Blvd. Med. P.C. v Progressive Ins., 9 Misc 3d 52 [App Term, 2d & 11th Jud Dists 2005]). This court has held that a statement in a claim form, that the services were provided by an independent contractor, may not be corrected once litigation has commenced, even if the statement was erroneous (A.M. Med. Servs., P.C. v Progressive Cas. Ins. Co., 22 Misc 3d 70 [App Term, 2d, 11th & 13th Jud Dists 2009]). Thus, defendant has conclusively demonstrated that plaintiff is not the provider entitled to payment of the assigned first-party no-fault benefits (A.M. Med. Servs., P.C., 22 Misc 3d 70; Rockaway [*2]
Blvd. Med. P.C., 9 Misc 3d 52), and defendant’s motion to dismiss for failure to state a cause of action should have been granted (see CPLR 3211 [a] [7])”
Nothing wrong here. Documentary evidence can be used upon motion to dismiss. Affidavits are not supposed to be used.
CPLR 3211(a)(1) – not (a)(7)… As pleaded, it stated a cause of action unless the bill was annexed to the complaint, which said independent contractor.
(a)(1) allows one to move to dismiss based upon documentary evidence. (a)(7) is for cases where even if true there is no claim. Are you saying the complaint in this case actually had the bills appended to it. If they did, not a good move but it happens. If they did not the Defendant obviously could produce them — hopefully in some proper manner — in their motion.
I see that the Appellate Division dug Zuppa’s Pit a little bit deeper today: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05564.htm
Part of the endgame Larry. Sometimes you need to lose some battles to win the war. Ask Grant … go to his tomb.
I thought we were friends. Now I am going to have get nasty with you.
As I always say, Mr. Z….. I don’t make the news, I just comment on it.
Oh, by the way, since you mention Grant’s Tomb. You know that old joke, “Who’s buried in Grant’s Tomb”?
The correct answer is “nobody.” Grant’s body is in the tomb, but it isn’t buried. It’s above ground.
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