Opinion
2014-04-15
AETNA HEALTH PLANS, as assignee of Luz Herrera, Plaintiff–Appellant, v. HANOVER INSURANCE COMPANY, Defendant–Respondent.
Shayne, Dachs, Sauer & Dachs, LLP, Mineola (Jonathan A. Dachs of counsel), for appellant. Crisci, Weiser & McCarthy, New York (Jayashri C. Srinivasan Cuffey of counsel), for respondent.
Shayne, Dachs, Sauer & Dachs, LLP, Mineola (Jonathan A. Dachs of counsel), for appellant. Crisci, Weiser & McCarthy, New York (Jayashri C. Srinivasan Cuffey of counsel), for respondent.
TOM, J.P., ACOSTA, FREEDMAN, KAPNICK, JJ.
Order, Supreme Court, Bronx County (Mary Ann Brigantti–Hughes, J.), entered on or about January 7, 2013, which granted defendant's cross motion to dismiss the complaint, and denied plaintiff's motion for summary judgment on the issue of liability, unanimously affirmed, with costs.
11 NYCRR 65–3.11(a) provides, in relevant part, for the payment of no-fault benefits “directly to the applicant ... or, upon assignment by the applicant ... to [the] providers of health care services.” Plaintiff Aetna Health Plans is not a “health care provider” under the statute, but rather a health care insurer ( see A.M. Med. Servs., P.C. v. Progressive Cas. Ins. Co., 101 A.D.3d 53, 62, 953 N.Y.S.2d 219 [2d Dept.2012]; Craig Antell, D.O., P.C. v. New York Cent. Mut. Fire Ins. Co., 11 Misc.3d 137(A), 2006 N.Y. Slip Op. 50521(U), 2006 WL 822858 [App.Term, 1st Dept.2006] ).
While the No–Fault Law provides a limited window of arbitration between no-fault insurers ( seeInsurance Law §§ 5105, 5106[d]; Eagle Ins. Co. v. ELRAC, Inc., 291 A.D.2d 272, 737 N.Y.S.2d 603 [1st Dept.2002] ), the statutory language does not pertain to a health insurer such as Aetna. Thus, Aetna cannot maintain a claim against defendant under the principle of subrogation ( see Health Ins. Plan of Greater N.Y. v. Allstate Ins. Co., 2007 WL 4367045, 2007 N.Y. Misc. LEXIS 9034 [Sup.Ct., N.Y. County 2007] ). Nor may Aetna assert a breach of contract claim against Hanover, since it is not in privity of contract with Hanover, and there has been no showing that it was an intended third-party beneficiary of the contract.