Yellin v. Liberty Mutual Insurance

192 Misc. 2d 285, 746 N.Y.S.2d 244, 2002 N.Y. Misc. LEXIS 839
CourtCivil Court of the City of New York
DecidedJuly 17, 2002
StatusPublished
Cited by2 cases

This text of 192 Misc. 2d 285 (Yellin v. Liberty Mutual Insurance) is published on Counsel Stack Legal Research, covering Civil Court of the City of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Yellin v. Liberty Mutual Insurance, 192 Misc. 2d 285, 746 N.Y.S.2d 244, 2002 N.Y. Misc. LEXIS 839 (N.Y. Super. Ct. 2002).

Opinion

OPINION OF THE COURT

Charles J. Markey, J.

This case raises an issue of first impression in this state concerning the ability of a healthcare provider to bill and recover for professional services, performed under the no-fault insurance benefits statute, where he delegated a portion of the work to an aide in his office, while retaining active supervision.

Upon the foregoing papers, defendant Liberty Mutual Insurance Company (Liberty) moves to reargue a decision of this court (Ronald D. Hollie, J.), granting summary judgment, on default, to plaintiff Dr. Steven Yellin (Yellin), a psychologist.

First, this case raises a procedural twist governing a motion to reargue under CPLR 2221 (a). In this case, Judge Hollie, on [286]*286June 6, 2000, granted plaintiffs motion for summary judgment on default, permitting plaintiff to enter a judgment in the amount of $886.32, with statutory interest from September 9, 1998. The order was entered by the clerk on June 7, 2000. Plaintiffs counsel, however, did not serve notice of entry until February 7, 2002, almost two years after the court had issued its order. Defendant’s present motion to reargue, by motion served on March 4, 2002, is timely. However, in the interim, Judge Hollie left this court. Specifically, on or about January 1, 2001, he assumed the office of an elected justice of the Supreme Court of this state.

First, the motion to reargue is timely since it was served within 30 days of the service of a copy of the order with notice of entry (CPLR 2221 [d] [3]; Matter of Pearson v Goord, 290 AD2d 910 [3d Dept 2002]; Glicksman v Board of Educ. / Cent. School Bd. of Comsewogue Union Free School Dist., 278 AD2d 364, 365 [2d Dept 2000]).

Ordinarily, a motion to reargue would be entertained by the judge who made the original decision. Out of respect and deference to the judge who issued the initial order, my chambers and that of the supervising judge of this court (Jeremy S. Weinstein, J.) asked Justice Hollie whether he wanted to hear the reargument motion, and Justice Hollie declined the invitations.

CPLR 2221 (a) (1) provides that if the original order was made on default, as occurred here, the motion to reargue can be made “to any judge of the court.” Thus, this court’s request to Justice Hollie was made out of deference and courtesy, not as a result of legal requirement and necessity, since, under the provisions of CPLR 2221 (a), this court was entitled to hear the reargument motion. This court, accordingly, by an interim order dated June 24, 2002, granted the motion to reargue, and, upon reargument, directed oral argument on the underlying summary judgment motion, which was held by this court on July 11, 2002.

Turning to the heart of this case, defendant insurer advances two interesting and novel claims. Defendant first contends that Dr. Yellin cannot recover no-fault benefits for work he delegated to an aide in his office. Second, in an effort to overcome the general rule mandating that an insurer disclaim coverage within 30 days, the insurer argues that since the doctor was billing for services not performed by him personally, the bill was therefore not in such legally presentable shape so as to have started the 30-day clock to run.

With regard to the first claim, although defendant has submitted for the court’s review a host of regulations, none of [287]*287the materials proffered bars a doctor from delegating work to another person in . his office for which the doctor is willing to assume personal responsibility, so long as an unlicensed or unauthorized practice of a profession is not implicated. The work of the most consummate of professionals cannot be performed unless some delegation of tasks is done. To whom a professional delegates the work and trusts to do the job is the professional’s responsibility.

In the present case, Dr. Yellin had been referred the case of Dwayne Davis, a teenager, who had been involved in an automobile accident and was manifesting certain symptoms that required a psychologist’s help. Dr. Yellin entrusted Ellen Cooper, a psychology intern with a Master’s degree to perform certain tests on Mr. Davis. Dr. Yellin’s report states that the tests administered by Ms. Cooper were performed under his personal supervision. Dr. Yellin analyzed the tests, prepared the report that bears his name and, by his signature, assumes responsibility for its contents, prepared the diagnosis, conclusions, and recommendations contained in it.

This court’s legal research, searching nationwide for cases, has not found any case on point. Because of the dearth and paucity of authority on the subject, both sides cite Rombom v Interboro Mut. Indem. Ins. Co. (170 Misc 2d 846 [Civ Ct, Queens County 1996]), the only case that is even remotely on point. There, Dr. Howard Rombom, a psychologist, delegated work to a psychometrician, Jennifer Gambino, consisting of administering psychological tests to a patient. The services performed by the psychometrician were not performed in the doctor’s offices, Dr. Rombom was physically not present when the tests were being administered, and the essential contact between Dr. Rombom and Ms. Gambino consisted of one telephone call. Despite the brevity of contact, Dr. Rombom felt unconstrained to submit no-fault insurance bills of $957.60, based upon eight hours of “work” billed at his time of $119.70 per hour. Dr. Rombom was paying Ms. Gambino, however, only $25, netting him a hefty profit. On top of all these facts, despite the eight hours of work, the test results and psychological evaluations were never made known to the patient.

It is assumed in the present case that Dr. Yellin is making a profit by delegating work to Ms. Cooper, while billing at certain hourly rates acceptable to the insurer. This case differs markedly from Rombom. In the present case, the tests, unlike those in Rombom, were performed in Dr. Yellin’s office, with him being close by, if needed during the administration of the tests. [288]*288Ms. Cooper provided the doctor with the raw data, responses, and information garnered from Mr. Davis, the patient. Yet, the patient’s responses were interpreted and evaluated by Dr. Yellin.

Dr. Yellin, by asking Ms. Cooper to collect responses from a patient, while he is in close proximity in his suite, attending to responsibilities that cannot be delegated to other persons, makes good sense. Ms. Cooper’s degree in psychology was undoubtedly useful to Dr. Yellin in helping his professional practice. She administered tests and may have even prepared parts of reports for his review and signature. Dr. Yellin, by certifying to the diagnosis contained in the report, as well as its other contents, accepts full responsibility therefor. He is entitled to be compensated for such services.

The services in the present case were performed in Dr. Yellin’s office on June 30 and July 22, 1998. Dr. Yellin sent his bill to the insurer on August 10, 1998, and it was actually received by the insurer on August 14, 1998. The insurer denied the claim on October 16, 1998.

Under regulations and a well-established line of authority, an insurer is generally precluded from raising any defenses where a denial is not made within 30 days of receipt of the claim (see Presbyterian Hosp. in City of N.Y. v Maryland Cas. Co., 90 NY2d 274 [1997]; New York Hosp. Med. Ctr. of Queens v Country-Wide Ins. Co., 295 AD2d 583 [2d Dept 2002]; 11 NYCRR 65.15 [g] [3]; see also Liberty Queens Med.

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Cite This Page — Counsel Stack

Bluebook (online)
192 Misc. 2d 285, 746 N.Y.S.2d 244, 2002 N.Y. Misc. LEXIS 839, Counsel Stack Legal Research, https://law.counselstack.com/opinion/yellin-v-liberty-mutual-insurance-nycivct-2002.