Preview
FILED: NASSAU COUNTY CLERK 10/19/2023 07:43 PM INDEX NO. 608339/2023
NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 10/19/2023
EXHIBIT P
FILED: NASSAU COUNTY CLERK 10/19/2023 07:43 PM INDEX NO. 608339/2023
607290/2022
NYSCEF DOC. NO. 24
64 10/19/2023
RECEIVED NYSCEF: 06/23/2023
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
PRESENT: HON. CONRAD D. SINGER,
Justice TRIAL PART: 21
X
NORMAN MAURICE ROWE, M.D., M.H.A., L.L C., Index No.: 607290/2022
Motion Seq. Nos.: 003 and 004
Motions Submitted: 02/21/2023
Plaintiff,
-against- DECISION AND ORDER ON
MOTIONS
OXFORD HEALTH INSURANCE, INC.,
XXX
Defendant.
X
The following papers have been read on these motions:
Defendant's Notice of Motion and Supporting Papers [Seq. 003] X
Plaintiffs Notice of Cross-Motion and Supporting Papers [Seq. 004] X
Defendant's Affirmation in Further Support of Motion to Dismiss [Seq. 003] X
Defendant's Affirmation in Opposition to Cross-Motion to Permit Discovery [Seq. 004] X
Upon the foregoing papers, Defendant OXFORD HEALTH INSURANCE, INC.'S
["Defendant"] motion seeking an order, pursuant to CPLR § 3211(a)(1) and/or (7), dismissing the
Complaint in its entirety, with prejudice [Seq. 003]; and, the Plaintiff NORMAN MAURICE
ROWE, M.D., M.H.A., LLC's ["Plaintiff'] cross-motion seeking an Order pursuant to CPLR
§ 3211(d), granting a continuance of the Defendant's pre-answer motion to dismiss to permit
disclosure [Seq. 004], are consolidated for disposition and determined as set forth hereinafter.
On June 6, 2022, the Plaintiff commenced this action by filing a Summons and Complaint,
asserting causes of action for breach of contract. unjust enrichment, promissory estoppel, and
violation of New York's Prompt Pay Law. According to the Complaint, on March 18, 2020, the
Plaintiff performed a bilateral breast reduction on an individual patient, who, at the time of the
procedure, was enrolled in the Trustees of the Spence Schools, Inc.'s Benefit Plan ("the Plan"),
which was administered by the Defendant. The Plaintiff alleges that before the procedure, on
1
1
1 of
of 9
FILED: NASSAU COUNTY CLERK 10/19/2023 07:43 PM INDEX
INDEX NO.
INDEX NO. 608339/2023
NO. 607290/2022
607290/2022
NYSCEF DOC.
NYSCEF DOC.
NYSCEF NO.
DOC. NO. 24
NO. 64
64 RECEIVED
RECEIVED NYSCEF:
RECEIVED NYSCEF: 10/19/2023
NYSCEF: 06/23/2023
06/23/2023
February 13, 2020, the Defendant offered to reimburse the bilateral breast reduction "at the in-
network benefit level even though [Plaintiff] was an out-of-network provider." The Plaintiff
further alleges that, prior to the procedure, non-party Norman Maurice Rowe, M.D. and the
Defendant entered into an agreement with MultiPlan ("the MultiPlan Agreement"), which the
Plaintiff claims set an in-network rate.' The Plaintiff alleges that the Defendant ultimately
"reneged by making payment that was not at the promised rate." Thus, the Plaintiff commenced
this action to recover the alleged promised payment.
By Notice of Motion filed on November 29, 2022, the Defendant moves for the dismissal
of the Complaint, arguing that the causes of action asserted therein are expressly preempted by the
Employee Retirement Income Security Act of 1974 ["ERISA"] § 514 [29 USCA § 1144(a)]; or,
alternatively, that the Complaint fails to state a cause of action pursuant to CPLR § 3211(a)(1)
and/or (7). By Notice of Cross-Motion filed on January 20, 2023, the Plaintiff cross-moves for a
continuance to permit disclosure and opposes the Defendant's request for dismissal, arguing that
the Defendant's alleged obligation to Plaintiff "is not predicated on any health plan." To determine
whether the parties are entitled to their respective requested relief, this Court must first determine
whether the Plaintiff's causes of action are expressly preempted pursuant to ERISA § 514.
The Defendant's principal argument is that the causes of action asserted are expressly
preempted pursuant to ERISA § 514 because they "relate to" the Defendant's administration of an
ERISA-governed employee benefit plan. The Plaintiff does not concede that the subject Plan is
' The Plaintiff's Complaint does not identify MultiPlan or provide a copy of the alleged agreement. The Court notes
that MultiPlan's website describes its service as "a nationwide complementary PPO network" that is typically utilized
by health plans to give its consumers "access to an additional choice of providers that have agreed to offer a discount
for services" (Solicitations FAQs, MULTIPLAN, https://www.multiplan.usimembers/solicitations-fags/ [last visited
June 16, 2023]).
2
of 9
2 of
FILED: NASSAU COUNTY CLERK 10/19/2023 07:43 PM INDEX NO. 608339/2023
607290/2022
NYSCEF DOC. NO. 24
64 10/19/2023
RECEIVED NYSCEF: 06/23/2023
governed by ERISA. Thus, a determinative issue raised by the Defendant's principal argument is
whether the Plan is governed by 1 1{ISA.
To determine whether the Plan is governed by ERISA, the Court must consider if "from
the surrounding circumstances a reasonable person can ascertain intended benefits, a class of
beneficiaries, the source of financing, and procedures for receiving benefits" (Feifer v Prudential
Ins. Co. ofAm., 306 F3d 1202 [2d Cir. 2002] [internal quotation marks omitted]). To demonstrate
each of these elements, Defendant submits the affidavit of Mabel S. Fairley ("Fairley"), "an
authorized representative of UnitedHealthcare Insurance Company and its affiliates, including [the
Defendant]," who introduces copies of the Group Policy, Schedule of Benefits, and Certificate of
Coverage (collectively, "the Policy Documents"). The Plaintiff argues in opposition to the
Defendant's submission that the Policy Documents should not be considered because they are not
properly authenticated, because they do not constitute documentary evidence pursuant to CPLR
§ 3211(a)(1), and because their relevance has not been established. The Court finds that the
Plaintiff's arguments are unavailing.
First, notwithstanding the Plaintiff's contentions, Fairley sufficiently authenticates the
Policy Documents. (CPLR Rule 4518; Bank of N.Y. Mellon v Gordon, 171 AD3d 197 [2d Dept
2019]). Moreover, an insurance policy, such as the Group Policy' submitted herein, qualifies as
documentary evidence and is, therefore. admissible under the Defendant's theories of dismissal.
(Ralex Servs., Inc. v Southwest Mar. & Gen. Ins. Co., 155 AD3d 800 [2d Dept 2017]). Finally, the
relevance of the Policy Documents is self-evident — particularly as the Plaintiff's Complaint asserts
that the individual patient was "a consumer of a health insurance product sold by Oxford," which
2 The Schedule of Benefits and Certificate of Coverage in conjunction with the Group Policy.
3
3 of
of 9
FILED: NASSAU COUNTY CLERK 10/19/2023 07:43 PM INDEX NO. 608339/2023
607290/2022
NYSCEF DOC. NO. 24
64 10/19/2023
RECEIVED NYSCEF: 06/23/2023
Fairley attests was the Plan. Therefore, this Court may consider the Policy Documents on this
motion to dismiss.
The Policy Documents satisfy each of the elements necessary to determine that the Plan is
governed by ERISA. Specifically, the Policy Documents demonstrate that the Plan is a group
policy between the Defendant and non-party Trustees of the Spence School, Inc. ("the Group") for
the benefit of employees of the Group and their dependents; that the Group purchased the Plan
from the Defendant; and, the Policy Documents also describe the procedure for enrollment and
receipt of benefits. Thus, this Court finds that the Plan is governed by ERISA (see, e.g., Norman
Maurice Rowe, M.D., M.H.A., L.L.C. et. al. v Oxford Health Insurance Co. et. al., 2022 NY Misc.
LEXIS 5580, *5, 2022 NY Slip Op 33150(U), 3 [Sup Ct. Queens County 2022]).
As the Plan constitutes an employee benefit plan governed by ERISA, express preemption
depends upon whether the claims underlying the asserted causes of action "relate to" the Plan.
ERISA § 514 provides, in pertinent part, that its preemption provisions "shall supersede any and
all State laws insofar as they may now or hereafter relate to any employee benefit plan" (29 USC
§ 1144[a]). Express preemption applies to statutory and common-law causes of action (see, e.g.,
Star Multi Care Servs., Inc. v Empire Blue Cross Blue Shield, 6 FSupp 3d 275 [EDNY 2014]). The
term "relates to" has been analyzed "in the normal sense of the phrase, if it has a connection with
or reference to such a plan" (Shaw v Delta Air Lines, Inc., 463 US 85 [1983]). However, where
such connection or reference k unclear, "the Court must look to ERISA' s objectives as a guide"
(N Y. State Conference of Blue Cross & Blue Shield Plans v Travelers Ins. Co., 514 US 645
[1995]). Of relevance herein, a claim "relates to" an ERISA-governed plan if it involves its
administration. (Pirro v National Grid, 590 Fed Appx 19 [2d Cir. 2014]).
4
4 of 9
FILED: NASSAU COUNTY CLERK 10/19/2023 07:43 PM INDEX NO. 608339/2023
607290/2022
NYSCEF DOC. NO. 24
64 10/19/2023
RECEIVED NYSCEF: 06/23/2023
The crux of the Plaintiff's claims is the allegation that before the procedure, on February
13, 2020, the Defendant offered to reimburse the bilateral breast reduction "at the in-network
benefit level even though [Plaintiff] was an out-of-network provider." The Complaint does not
indicate the way this alleged offer of payment was communicated to the Plaintiff However, the
Defendant, through Ms. Fairley, introduces a letter, dated February 13, 2020 ("February 13
Letter"), which the Defendant sent to the individual patient and to non-parties Dr. John Abroon
MD, Dr. Charles Pierce DO, Norman Maurice Rowe MD, and Manhattan Eye, Ear & Throat,
informing them that the Defendant had reviewed and approved the medical service listed therein,
subject to the terms of the Plan.
In opposition to the Defendant's motion, the Plaintiff submits an affidavit of its employee,
Michael Manzo ("Manzo"), who claims that the alleged offer of payment was made orally, via
telephone, to an unidentified "Rowe representative." Manzo also acknowledges receipt of the
February 13 Letter, claiming that the letter informed the individual patient that the Defendant had
"reached an agreement with the out-of-network provider Rowe" and that "Rowe's services would
be covered by [Defendant] as in-network."
Absent an affidavit from the unidentified "Rowe representative," Manzo's allegation that
an oral offer of payment had been made is inadmissible hearsay. However, affording the Plaintiff
every favorable inference and assuming that an oral offer of payment had been made, the February
13 Letter k a contemporaneous memorialization of the offer allegedly accepted and relied upon
by Plaintiff, which alleged offer forms the basis for each cause of action. Additionally, the Plaintiff
has not objected to the Court considering the February 13 Letter submitted by the Defendant, and
the Court has therefore considered same in determining the Defendant's motion to dismiss. (see,
e.g., New York Military Academy v NewOpen Group, 142 AD3d 489 [2d Dept 2016]).
5
5 of 9
FILED: NASSAU COUNTY CLERK 10/19/2023 07:43 PM INDEX NO. 608339/2023
607290/2022
NYSCEF DOC. NO. 24
64 10/19/2023
RECEIVED NYSCEF: 06/23/2023
The Court finds that the documentary evidence, in the form of the February 13 Letter,
utterly refutes the Plaintiff's factual allegations concerning any alleged "agreement" between the
parties, and thereby conclusively establishes a defense as a matter of law. (See, e.g., New York
Military Academy, 142 AD3d at 490 [2d Dept 2016] ) While the February 13 Letter states that:
"The requested in-network exception has been granted [and] reimbursement for the listed services
will be reimbursed in accordance with the Member's in-network benefits (including in-network
copayment, deductible and/or coinsurance)," the February 13 Letter further states that this in-
network exception is expressly limited. Specifically, contrary to Manzo's representation, the
February 13 Letter explicitly limits its approval to "Service Code(s): 19318; Description of Service
Code(s): Reduction of large breast; Service Provider: Norman Rowe, MD; Facility: Manhattan
Eye, Ear & Throat; Date of Service: 03/20/20."
In addition, the February 13 Letter states: "This payment estimate is not a guarantee. The
actual payment will depend on a number of factors, including, for example, the services you
receive, the amount billed by your doctor or other provider, the actual procedure codes submitted,
and your eligibility for benefits at the time you receive services." The February 13 Letter also
states that: "Reimbursement is determined after services are rendered and a claim is submitted.
Therefore, this approval does not guarantee payment. Upon receipt of the claim, we will assess
whether the service codes listed above are eligible for payment." Finally, the February 13 Letter
states: "Payment is based on the following: Member enrollment and eligibility; Terms, conditions,
exclusions and limitations of the Member's health benefits plan; Oxford administrative and
payment policies."
Consequently, the Plaintiff's claims that the alleged offer of payment at in-network benefit
level created a legal duty independent of the Plan and that a determination of the amount allegedly
6
6 of 9
FILED: NASSAU COUNTY CLERK 10/19/2023 07:43 PM INDEX NO. 608339/2023
607290/2022
NYSCEF DOC. NO. 24
64 10/19/2023
RECEIVED NYSCEF: 06/23/2023
due is not based upon review of the Plan, are expressly contradicted by the plain language of the
February 13 Letter. Specifically, the February 13 Letter clearly provides that payment is not
guaranteed, but dependent upon the Plan (Norman Maurice Rowe, M.D., MH.A., L.L.C. v Oxford
Health Ins. Co., Inc., 77 Misc. 3d 958 [Sup Ct, Queens County 2022]).
Ultimately, the February 13 Letter establishes that "the only means by which to determine
if the claims were administered properly is to review the terms of the governing ERISA plan"
(Norman Maurice Rowe, M.D., M.H.A., LLC v Oxford Health Ins. Co., Inc., 2022 WL 2980647
[Sup Ct. Queens County 2022]). Therefore, as has been consistently found, the claims underlying
the Plaintiff's causes of action "relate to" the administration of the Plan and are thereby expressly
preempted pursuant to ERISA § 514 (see, e.g., East Coast Plastic Surgery, P.C. v Oxford Health
Ins. Co., et. al., Index No. 713753/2021 [Sup Ct, Queens County 2023]; Norman Maurice Rowe,
M.D., M.H.A., L.L.C., 77 Misc.3d 958; Norman Maurice Rowe, M.D., 11 H.A., L.L.C et. al. v
Oxford Health Insurance Co. et. al., 2022 NY Misc. LEXIS 5580, *5, 2022 NY Slip Op 33150(U), 3
[Sup Ct. Queens County 2022]).
As the claims underlying the Plaintiff's causes of action "relate to" the administration of
the Plan and the Plaintiff's claims are therefore expressly preempted pursuant to ERISA, the
Defendant's motion to dismiss the Complaint [Seq. 003] shall be GRANTED in its entirety and
the Complaint shall be dismissed.
The Court further notes that the Plaintiff's Complaint asserts that the MultiPlan Agreement
allegedly entered into by non-party Norman Maurice Rowe, M.D. and the Defendant sets an in-
network rate. The Complaint further alleges that pursuant to the MultiPlan Agreement, the
Defendant "would signal their participation in the Multiplan agreement by placing the Multiplan
logo on one side of the insurance card they issue to consumers of their insurance product." To this
7
7 of 9
FILED: NASSAU COUNTY CLERK 10/19/2023 07:43 PM INDEX NO. 608339/2023
607290/2022
NYSCEF DOC. NO. 24
64 10/19/2023
RECEIVED NYSCEF: 06/23/2023
end, the Plaintiff's Complaint alleges that the insurance card presented to them by the individual
patient was issued by the Defendant and that the card bore the MultiPlan logo.
The Defendant argues in support of its motion that any alleged MultiPlan Agreement is
irrelevant because the Plaintiff "has not alleged that it is a party to a Multiplan Agreement."
Instead, the Plaintiff alleges that Dr. Rowe, not the Plaintiff Rowe LLC, entered into separate
agreements with non-party Multiplan. The Defendant further argues that any agreement signed by
Dr. Rowe in his own capacity is entirely irrelevant. The Defendant further argues that the existence
of a MultiPlan logo on a patient's insurance card is, in and of itself, insufficient to invoke the terms
of a MultiPlan agreement (Atlantic Neurosurgical Specialists, P.A. v Multiplan Inc., No. 20-cv-
10685, 2023 WL 160084 [SDNY 2023], citing The Plastic Surgery Ctr., P.A. v Cigna Health &
Life Ins. Co., No. 17-cv-02055, 2019 WL 1916205 [DNJ 2019]). The Defendant further argues
that the Plan explicitly provides that its provisions and administrative practices supersede any
shared savings program.
The Plaintiff fails to raise any argument pertaining to the alleged MultiPlan Agreement.
Instead, the Plaintiff requests additional discovery, and claims that such is necessary to ascertain
the alleged promised in-network benefit level rate. Regardless, even affording the Plaintiff every
favorable inference and assuming that the alleged MultiPlan Agreement set an in-network rate,
such is irrelevant because, with respect to the particular service at issue herein, the plain language
of the February 13 Letter clearly provides that payment is not guaranteed but is instead dependent
upon the Plan.
With respect to the Plaintiff's cross-motion for a continuance to conduct discovery, such
cross-motion [Seq. 004] has been rendered moot by the Court's determination that the Defendant
is entitled to dismissal of the Complaint.
8
8 of
of 9
FILED: NASSAU COUNTY CLERK 10/19/2023 07:43 PM INDEX NO. 608339/2023
607290/2022
NYSCEF DOC. NO. 24
64 10/19/2023
RECEIVED NYSCEF: 06/23/2023
Accordingly, it is
ORDERED, that the Defendant's motion for an Order dismissing the Complaint is
GRANTED in its entirety and the Complaint is hereby DISMISSED, with prejudice; and it is
further,
ORDERED, that the Plaintiffs cross-motion for an Order pursuant to CPLR 3211(d)
granting a continuance of the Defendant's Pre-Answer CPLR 3211(a) Motion to Dismiss to permit
disclosure to be had is DENIED, in its entirety; and it is further,
ORDERED, that all requests for relief not specifically addressed herein shall be deemed
DENIED.
This shall constitute the Decision and Order of the Court. C -\
Dated: June 23, 2023
Mineola, New York
HON. CONRA SIN , J.S.C.
9
9 of 9
Preview
FILED: NASSAU COUNTY CLERK 10/19/2023 07:43 PM INDEX NO. 608339/2023 NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 10/19/2023 EXHIBIT P FILED: NASSAU COUNTY CLERK 10/19/2023 07:43 PM INDEX NO. 608339/2023 607290/2022 NYSCEF DOC. NO. 24 64 10/19/2023 RECEIVED NYSCEF: 06/23/2023 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PRESENT: HON. CONRAD D. SINGER, Justice TRIAL PART: 21 X NORMAN MAURICE ROWE, M.D., M.H.A., L.L C., Index No.: 607290/2022 Motion Seq. Nos.: 003 and 004 Motions Submitted: 02/21/2023 Plaintiff, -against- DECISION AND ORDER ON MOTIONS OXFORD HEALTH INSURANCE, INC., XXX Defendant. X The following papers have been read on these motions: Defendant's Notice of Motion and Supporting Papers [Seq. 003] X Plaintiffs Notice of Cross-Motion and Supporting Papers [Seq. 004] X Defendant's Affirmation in Further Support of Motion to Dismiss [Seq. 003] X Defendant's Affirmation in Opposition to Cross-Motion to Permit Discovery [Seq. 004] X Upon the foregoing papers, Defendant OXFORD HEALTH INSURANCE, INC.'S ["Defendant"] motion seeking an order, pursuant to CPLR § 3211(a)(1) and/or (7), dismissing the Complaint in its entirety, with prejudice [Seq. 003]; and, the Plaintiff NORMAN MAURICE ROWE, M.D., M.H.A., LLC's ["Plaintiff'] cross-motion seeking an Order pursuant to CPLR § 3211(d), granting a continuance of the Defendant's pre-answer motion to dismiss to permit disclosure [Seq. 004], are consolidated for disposition and determined as set forth hereinafter. On June 6, 2022, the Plaintiff commenced this action by filing a Summons and Complaint, asserting causes of action for breach of contract. unjust enrichment, promissory estoppel, and violation of New York's Prompt Pay Law. According to the Complaint, on March 18, 2020, the Plaintiff performed a bilateral breast reduction on an individual patient, who, at the time of the procedure, was enrolled in the Trustees of the Spence Schools, Inc.'s Benefit Plan ("the Plan"), which was administered by the Defendant. The Plaintiff alleges that before the procedure, on 1 1 1 of of 9 FILED: NASSAU COUNTY CLERK 10/19/2023 07:43 PM INDEX INDEX NO. INDEX NO. 608339/2023 NO. 607290/2022 607290/2022 NYSCEF DOC. NYSCEF DOC. NYSCEF NO. DOC. NO. 24 NO. 64 64 RECEIVED RECEIVED NYSCEF: RECEIVED NYSCEF: 10/19/2023 NYSCEF: 06/23/2023 06/23/2023 February 13, 2020, the Defendant offered to reimburse the bilateral breast reduction "at the in- network benefit level even though [Plaintiff] was an out-of-network provider." The Plaintiff further alleges that, prior to the procedure, non-party Norman Maurice Rowe, M.D. and the Defendant entered into an agreement with MultiPlan ("the MultiPlan Agreement"), which the Plaintiff claims set an in-network rate.' The Plaintiff alleges that the Defendant ultimately "reneged by making payment that was not at the promised rate." Thus, the Plaintiff commenced this action to recover the alleged promised payment. By Notice of Motion filed on November 29, 2022, the Defendant moves for the dismissal of the Complaint, arguing that the causes of action asserted therein are expressly preempted by the Employee Retirement Income Security Act of 1974 ["ERISA"] § 514 [29 USCA § 1144(a)]; or, alternatively, that the Complaint fails to state a cause of action pursuant to CPLR § 3211(a)(1) and/or (7). By Notice of Cross-Motion filed on January 20, 2023, the Plaintiff cross-moves for a continuance to permit disclosure and opposes the Defendant's request for dismissal, arguing that the Defendant's alleged obligation to Plaintiff "is not predicated on any health plan." To determine whether the parties are entitled to their respective requested relief, this Court must first determine whether the Plaintiff's causes of action are expressly preempted pursuant to ERISA § 514. The Defendant's principal argument is that the causes of action asserted are expressly preempted pursuant to ERISA § 514 because they "relate to" the Defendant's administration of an ERISA-governed employee benefit plan. The Plaintiff does not concede that the subject Plan is ' The Plaintiff's Complaint does not identify MultiPlan or provide a copy of the alleged agreement. The Court notes that MultiPlan's website describes its service as "a nationwide complementary PPO network" that is typically utilized by health plans to give its consumers "access to an additional choice of providers that have agreed to offer a discount for services" (Solicitations FAQs, MULTIPLAN, https://www.multiplan.usimembers/solicitations-fags/ [last visited June 16, 2023]). 2 of 9 2 of FILED: NASSAU COUNTY CLERK 10/19/2023 07:43 PM INDEX NO. 608339/2023 607290/2022 NYSCEF DOC. NO. 24 64 10/19/2023 RECEIVED NYSCEF: 06/23/2023 governed by ERISA. Thus, a determinative issue raised by the Defendant's principal argument is whether the Plan is governed by 1 1{ISA. To determine whether the Plan is governed by ERISA, the Court must consider if "from the surrounding circumstances a reasonable person can ascertain intended benefits, a class of beneficiaries, the source of financing, and procedures for receiving benefits" (Feifer v Prudential Ins. Co. ofAm., 306 F3d 1202 [2d Cir. 2002] [internal quotation marks omitted]). To demonstrate each of these elements, Defendant submits the affidavit of Mabel S. Fairley ("Fairley"), "an authorized representative of UnitedHealthcare Insurance Company and its affiliates, including [the Defendant]," who introduces copies of the Group Policy, Schedule of Benefits, and Certificate of Coverage (collectively, "the Policy Documents"). The Plaintiff argues in opposition to the Defendant's submission that the Policy Documents should not be considered because they are not properly authenticated, because they do not constitute documentary evidence pursuant to CPLR § 3211(a)(1), and because their relevance has not been established. The Court finds that the Plaintiff's arguments are unavailing. First, notwithstanding the Plaintiff's contentions, Fairley sufficiently authenticates the Policy Documents. (CPLR Rule 4518; Bank of N.Y. Mellon v Gordon, 171 AD3d 197 [2d Dept 2019]). Moreover, an insurance policy, such as the Group Policy' submitted herein, qualifies as documentary evidence and is, therefore. admissible under the Defendant's theories of dismissal. (Ralex Servs., Inc. v Southwest Mar. & Gen. Ins. Co., 155 AD3d 800 [2d Dept 2017]). Finally, the relevance of the Policy Documents is self-evident — particularly as the Plaintiff's Complaint asserts that the individual patient was "a consumer of a health insurance product sold by Oxford," which 2 The Schedule of Benefits and Certificate of Coverage in conjunction with the Group Policy. 3 3 of of 9 FILED: NASSAU COUNTY CLERK 10/19/2023 07:43 PM INDEX NO. 608339/2023 607290/2022 NYSCEF DOC. NO. 24 64 10/19/2023 RECEIVED NYSCEF: 06/23/2023 Fairley attests was the Plan. Therefore, this Court may consider the Policy Documents on this motion to dismiss. The Policy Documents satisfy each of the elements necessary to determine that the Plan is governed by ERISA. Specifically, the Policy Documents demonstrate that the Plan is a group policy between the Defendant and non-party Trustees of the Spence School, Inc. ("the Group") for the benefit of employees of the Group and their dependents; that the Group purchased the Plan from the Defendant; and, the Policy Documents also describe the procedure for enrollment and receipt of benefits. Thus, this Court finds that the Plan is governed by ERISA (see, e.g., Norman Maurice Rowe, M.D., M.H.A., L.L.C. et. al. v Oxford Health Insurance Co. et. al., 2022 NY Misc. LEXIS 5580, *5, 2022 NY Slip Op 33150(U), 3 [Sup Ct. Queens County 2022]). As the Plan constitutes an employee benefit plan governed by ERISA, express preemption depends upon whether the claims underlying the asserted causes of action "relate to" the Plan. ERISA § 514 provides, in pertinent part, that its preemption provisions "shall supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan" (29 USC § 1144[a]). Express preemption applies to statutory and common-law causes of action (see, e.g., Star Multi Care Servs., Inc. v Empire Blue Cross Blue Shield, 6 FSupp 3d 275 [EDNY 2014]). The term "relates to" has been analyzed "in the normal sense of the phrase, if it has a connection with or reference to such a plan" (Shaw v Delta Air Lines, Inc., 463 US 85 [1983]). However, where such connection or reference k unclear, "the Court must look to ERISA' s objectives as a guide" (N Y. State Conference of Blue Cross & Blue Shield Plans v Travelers Ins. Co., 514 US 645 [1995]). Of relevance herein, a claim "relates to" an ERISA-governed plan if it involves its administration. (Pirro v National Grid, 590 Fed Appx 19 [2d Cir. 2014]). 4 4 of 9 FILED: NASSAU COUNTY CLERK 10/19/2023 07:43 PM INDEX NO. 608339/2023 607290/2022 NYSCEF DOC. NO. 24 64 10/19/2023 RECEIVED NYSCEF: 06/23/2023 The crux of the Plaintiff's claims is the allegation that before the procedure, on February 13, 2020, the Defendant offered to reimburse the bilateral breast reduction "at the in-network benefit level even though [Plaintiff] was an out-of-network provider." The Complaint does not indicate the way this alleged offer of payment was communicated to the Plaintiff However, the Defendant, through Ms. Fairley, introduces a letter, dated February 13, 2020 ("February 13 Letter"), which the Defendant sent to the individual patient and to non-parties Dr. John Abroon MD, Dr. Charles Pierce DO, Norman Maurice Rowe MD, and Manhattan Eye, Ear & Throat, informing them that the Defendant had reviewed and approved the medical service listed therein, subject to the terms of the Plan. In opposition to the Defendant's motion, the Plaintiff submits an affidavit of its employee, Michael Manzo ("Manzo"), who claims that the alleged offer of payment was made orally, via telephone, to an unidentified "Rowe representative." Manzo also acknowledges receipt of the February 13 Letter, claiming that the letter informed the individual patient that the Defendant had "reached an agreement with the out-of-network provider Rowe" and that "Rowe's services would be covered by [Defendant] as in-network." Absent an affidavit from the unidentified "Rowe representative," Manzo's allegation that an oral offer of payment had been made is inadmissible hearsay. However, affording the Plaintiff every favorable inference and assuming that an oral offer of payment had been made, the February 13 Letter k a contemporaneous memorialization of the offer allegedly accepted and relied upon by Plaintiff, which alleged offer forms the basis for each cause of action. Additionally, the Plaintiff has not objected to the Court considering the February 13 Letter submitted by the Defendant, and the Court has therefore considered same in determining the Defendant's motion to dismiss. (see, e.g., New York Military Academy v NewOpen Group, 142 AD3d 489 [2d Dept 2016]). 5 5 of 9 FILED: NASSAU COUNTY CLERK 10/19/2023 07:43 PM INDEX NO. 608339/2023 607290/2022 NYSCEF DOC. NO. 24 64 10/19/2023 RECEIVED NYSCEF: 06/23/2023 The Court finds that the documentary evidence, in the form of the February 13 Letter, utterly refutes the Plaintiff's factual allegations concerning any alleged "agreement" between the parties, and thereby conclusively establishes a defense as a matter of law. (See, e.g., New York Military Academy, 142 AD3d at 490 [2d Dept 2016] ) While the February 13 Letter states that: "The requested in-network exception has been granted [and] reimbursement for the listed services will be reimbursed in accordance with the Member's in-network benefits (including in-network copayment, deductible and/or coinsurance)," the February 13 Letter further states that this in- network exception is expressly limited. Specifically, contrary to Manzo's representation, the February 13 Letter explicitly limits its approval to "Service Code(s): 19318; Description of Service Code(s): Reduction of large breast; Service Provider: Norman Rowe, MD; Facility: Manhattan Eye, Ear & Throat; Date of Service: 03/20/20." In addition, the February 13 Letter states: "This payment estimate is not a guarantee. The actual payment will depend on a number of factors, including, for example, the services you receive, the amount billed by your doctor or other provider, the actual procedure codes submitted, and your eligibility for benefits at the time you receive services." The February 13 Letter also states that: "Reimbursement is determined after services are rendered and a claim is submitted. Therefore, this approval does not guarantee payment. Upon receipt of the claim, we will assess whether the service codes listed above are eligible for payment." Finally, the February 13 Letter states: "Payment is based on the following: Member enrollment and eligibility; Terms, conditions, exclusions and limitations of the Member's health benefits plan; Oxford administrative and payment policies." Consequently, the Plaintiff's claims that the alleged offer of payment at in-network benefit level created a legal duty independent of the Plan and that a determination of the amount allegedly 6 6 of 9 FILED: NASSAU COUNTY CLERK 10/19/2023 07:43 PM INDEX NO. 608339/2023 607290/2022 NYSCEF DOC. NO. 24 64 10/19/2023 RECEIVED NYSCEF: 06/23/2023 due is not based upon review of the Plan, are expressly contradicted by the plain language of the February 13 Letter. Specifically, the February 13 Letter clearly provides that payment is not guaranteed, but dependent upon the Plan (Norman Maurice Rowe, M.D., MH.A., L.L.C. v Oxford Health Ins. Co., Inc., 77 Misc. 3d 958 [Sup Ct, Queens County 2022]). Ultimately, the February 13 Letter establishes that "the only means by which to determine if the claims were administered properly is to review the terms of the governing ERISA plan" (Norman Maurice Rowe, M.D., M.H.A., LLC v Oxford Health Ins. Co., Inc., 2022 WL 2980647 [Sup Ct. Queens County 2022]). Therefore, as has been consistently found, the claims underlying the Plaintiff's causes of action "relate to" the administration of the Plan and are thereby expressly preempted pursuant to ERISA § 514 (see, e.g., East Coast Plastic Surgery, P.C. v Oxford Health Ins. Co., et. al., Index No. 713753/2021 [Sup Ct, Queens County 2023]; Norman Maurice Rowe, M.D., M.H.A., L.L.C., 77 Misc.3d 958; Norman Maurice Rowe, M.D., 11 H.A., L.L.C et. al. v Oxford Health Insurance Co. et. al., 2022 NY Misc. LEXIS 5580, *5, 2022 NY Slip Op 33150(U), 3 [Sup Ct. Queens County 2022]). As the claims underlying the Plaintiff's causes of action "relate to" the administration of the Plan and the Plaintiff's claims are therefore expressly preempted pursuant to ERISA, the Defendant's motion to dismiss the Complaint [Seq. 003] shall be GRANTED in its entirety and the Complaint shall be dismissed. The Court further notes that the Plaintiff's Complaint asserts that the MultiPlan Agreement allegedly entered into by non-party Norman Maurice Rowe, M.D. and the Defendant sets an in- network rate. The Complaint further alleges that pursuant to the MultiPlan Agreement, the Defendant "would signal their participation in the Multiplan agreement by placing the Multiplan logo on one side of the insurance card they issue to consumers of their insurance product." To this 7 7 of 9 FILED: NASSAU COUNTY CLERK 10/19/2023 07:43 PM INDEX NO. 608339/2023 607290/2022 NYSCEF DOC. NO. 24 64 10/19/2023 RECEIVED NYSCEF: 06/23/2023 end, the Plaintiff's Complaint alleges that the insurance card presented to them by the individual patient was issued by the Defendant and that the card bore the MultiPlan logo. The Defendant argues in support of its motion that any alleged MultiPlan Agreement is irrelevant because the Plaintiff "has not alleged that it is a party to a Multiplan Agreement." Instead, the Plaintiff alleges that Dr. Rowe, not the Plaintiff Rowe LLC, entered into separate agreements with non-party Multiplan. The Defendant further argues that any agreement signed by Dr. Rowe in his own capacity is entirely irrelevant. The Defendant further argues that the existence of a MultiPlan logo on a patient's insurance card is, in and of itself, insufficient to invoke the terms of a MultiPlan agreement (Atlantic Neurosurgical Specialists, P.A. v Multiplan Inc., No. 20-cv- 10685, 2023 WL 160084 [SDNY 2023], citing The Plastic Surgery Ctr., P.A. v Cigna Health & Life Ins. Co., No. 17-cv-02055, 2019 WL 1916205 [DNJ 2019]). The Defendant further argues that the Plan explicitly provides that its provisions and administrative practices supersede any shared savings program. The Plaintiff fails to raise any argument pertaining to the alleged MultiPlan Agreement. Instead, the Plaintiff requests additional discovery, and claims that such is necessary to ascertain the alleged promised in-network benefit level rate. Regardless, even affording the Plaintiff every favorable inference and assuming that the alleged MultiPlan Agreement set an in-network rate, such is irrelevant because, with respect to the particular service at issue herein, the plain language of the February 13 Letter clearly provides that payment is not guaranteed but is instead dependent upon the Plan. With respect to the Plaintiff's cross-motion for a continuance to conduct discovery, such cross-motion [Seq. 004] has been rendered moot by the Court's determination that the Defendant is entitled to dismissal of the Complaint. 8 8 of of 9 FILED: NASSAU COUNTY CLERK 10/19/2023 07:43 PM INDEX NO. 608339/2023 607290/2022 NYSCEF DOC. NO. 24 64 10/19/2023 RECEIVED NYSCEF: 06/23/2023 Accordingly, it is ORDERED, that the Defendant's motion for an Order dismissing the Complaint is GRANTED in its entirety and the Complaint is hereby DISMISSED, with prejudice; and it is further, ORDERED, that the Plaintiffs cross-motion for an Order pursuant to CPLR 3211(d) granting a continuance of the Defendant's Pre-Answer CPLR 3211(a) Motion to Dismiss to permit disclosure to be had is DENIED, in its entirety; and it is further, ORDERED, that all requests for relief not specifically addressed herein shall be deemed DENIED. This shall constitute the Decision and Order of the Court. C -\ Dated: June 23, 2023 Mineola, New York HON. CONRA SIN , J.S.C. 9 9 of 9