Preview
FILED: NEW YORK COUNTY CLERK 09/18/2019 03:16 PM INDEX NO. 156988/2019
NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/18/2019
T.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
AMERICAN TRANSIT INSURANCE COMPANY,
REPLY AFFIRMATION
IN FURTHER SUPPORT
OF CITIMED SERVICES.
PA'S. MOTION TO
DISMISS
Plaintiff
-against -
Index No.: 156988/2019
HEALTH PLUS SURGERY CENTER, LLC,
CITIMED SERVICES, PA, and
BRADLEY WASSERMAN, MD, PLLC
A/0 JIAN-CHENG DANG,
Defendants.
Rachel Drachman Esq., an attorney duly admitted to the practice of law in the courts of the State
of New York, under the penalties of perjury affirms as follows:
1. I am a Partner of Drachman Katz, LLP, attorneys for defendant CITIMED SERVICES,
PA (hereinafter "Defendant"), and am fully familiar with the facts and circumstances had herein.
2. This Affirmation is respectfully submitted for an order (1) pursuant to C.P.L.R.
3211(a)(2) dismissing the instant claim as against CITIMED SERVICES, PA, for lack of
jurisdiction; (2) pursuant to the Rules of the Chief Administrative Judge, Part 130 et seq., for
attorneys'
reasonable costs and fees; and (3) granting such other relief that this Court deems just
and proper.
3. Defendant incorporates by reference the relevant facts and procedural history, as set forth
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more fully in its initialAffirmation in Support of Motion to Dismiss ("Def 's Aff. in Supp.").
See Def.'s Aff. in Suna. at ¶¶ 3-10.
ARGUMENT
L Plaintiff's Comp!±int, as Against Citimed Services, PA, Should Be Dismissed on
Jurisdictional Grounds.
4. First and foremost, Defendant clarifies, as stated in its original Affirmation in Support,
that the instant Motion is a motion to dismiss for lack of subject matter jurisdiction pursuant to
CPLR § 3211(a)(2) and not a motion for summary judgment pursuant to CPLR § 3212. See
Def 's Aff. in Supp. at ¶ 2 ("This Affinnation is submitted in support of the Defendant Citimed
Services, PA's, motion to dismiss the Plaintiff's Complaint . . .").
While Defendant's original Notice
of Motion indicates CPLR § 3212, this was a typographical error. See Def 's Aff. in Supp.
5. This typographical error has resulted in no prejudice to Plaintiff, as the second half of the
Plaintiff's Memorandum of Law in Support of Plaintiff's Opposition to Defendant's Motion for
Summary Judgment ("Pl.'s Memo. in Op_p.") fully addresses the relevant question of whether the
Complaint should be dismissed on jurisdictional grounds pursuant to CPLR § 3211(a)(2). As
such, Defendant respectfully requests that this Court treat the instant Motion, as originally
intended, as a motion to dismiss for lack of subject matter jurisdiction pursuant to CPLR §
3211(a)(2).
6. To the extent that Plaintiff argues that the prior arbitration awards are not collateral
estoppel, such argument is non-responsive. Defendant does not dispute that, in instances where
the Court has proper subject matter jurisdiction over a no-fault dispute pursuant to Insurance
Law § 5106(c), a plaintiff would be entitled to de novo review of the underlying issues.
7. It isabundantly clear, however, on the face of the statute itself,that an insurer or claimant
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may only institute such a court action where the amount of the master arbitrator's award is five
thousand dollars or greater, exclusive of interest and attorney's fees. See N.Y. Ins. Law § 5106(c)
("The award of the master arbitrator shall be binding except for the grounds of review set forth in
article seventy-five of the civil practice law and rules, and provided further that where the
aiñGüñt of such master arbitrator's award is five thousand dollars or greater . .. the insurer
or claimant may institute a court action to adjudicate the dispute de novo") (emphasis added). In
Avenue C. Med., P.C. v. Encompass Ins. Of MA, 130 A.D.3d 764-65, for example, the plaintiff's
no-fault claim was dismissed under CPLR § 3211(a)(2) because the arbitration award had been
vacated in itsentirety, making the master arbitrator's award $0 ("Here, the master arbitrator, by
vacating the arbitrator's award in its entirety, effectively made no monetary reward, and because
the master arbitrator's award was less than $5,000, neither party is entitled to maintain a court
action to adjudicate the dispute de novo").
8. It isundisputed that the underlying amount in controversy, as it pertains to Defendant, is
less than five-thousand dollars. In fact, such amount is only $3,029.12. See Plaintiff's Complaint
("Pl.'s Compl.") at ¶ 7; Defendant's Answer ("Def.'s Ans.") at ¶ 7.
9. Plaintiff is making a thinly-veiled attempt to circumvent the provisions of Insurance Law
§ 5106(c) by combining Citimed Services, PA's claim was two larger claims awarded to
Defendant Health Surgery Center PLLC and Defendant Bradley Wasserman, MD, PLLC in the
amounts of $19,947.03 and $13,096.70, respectively.
10. Plaintiff's argument that the question of whether this case should be dismissed hinges on
"dispute,"
the meaning of the word as it appears in Insurance Law § 5106(c), makes littlesense.
See Pl.'s Memo. in Opp., at p. 7. Plaintiff appears to be suggesting that simply because three
different services were rendered by three different providers in connection with the same
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"dispute."
surgery, itis somehow entitled to combine these three separate claims into a single
arbitrator,"
11. However, Insurance Law § 5106(c) contemplates "an award by an not "an
arbitrator."
award or awards by an See Ins. Law § 5106(c). To that effect, because itis
undisputed that Defendant Citimed Services, PA's, was only awarded $3,029.12, Plaintiff is not
entitled to institute a court action with respect to same. See Avenue C. 130 A.D.3d at 764-
Med.,
65. See also Hendershot v. Utica Mut. Ins. Col., 475 N.Y.S.2d 558 (3d Dep't 1984); Sansiviero
v. Royal Globe Ins. Col., 486 N.Y.S.2d 366 (2d Dep't 1985); Harley v. United Servs. Auto.
Ass'n, 191 A.D.2d 768 (3d Dep't 1993).
12. Notably, Plaintiff has cited no authority whatsoever to support itscore contention that
separate awards may be combined for the purposes of meeting the prerequisite jurisdictional
requirements of Insurance Law § 5106(c). In fact, taken to its logical extension, Plaintiff's
argument directly implies that any number of combined rewards, in connection with the same
claimant, would be subject to de novo review by the courts (an insurer would be able, for
example, to combine fifty separate $100 awards from fifty different providers for the purposes of
meeting the $5,000 threshold, so long as they were all services rendered for the same claimant).
This would entirely defeat the purpose of binding arbitration, render the $5,000 threshold amount
under Insurance Law § 5106(c) virtually toothless, and flood the court system with requests to
adjudicate no-fault disputes de novo.
13. Plaintiff fares no better in arguing that by seeking dismissal of the instant claim,
Defendant is somehow attempting to avail itselfof greater rights as an assignee than its own
assignor. Whether the Regulations initially envisioned splitting services into separate claims is
entirely irrelevant; the relevant fact of the matter is that the instant case involves three separate
claims for three different providers. Plaintiff claims that "no question would be raised if the
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Eligible Injured Person (EIP) brought these bills directly to arbitration . .. [h]owever, because
the EIP has assigned his rights to the three providers in this case, Defendant Citimed has moved
dismiss."
to Contrary to the Plaintiff's contentions, itis axiomatically untrue that Defendant
Citimed, in this instance, is asserting that ithas greater rights as an assignee than itsown
assignor. Had the EIP not assigned his rights in this instance, he would have received the three
subject separate bills from the three subject separate providers, and he would have had to
arbitrate all three separately-just as the assignee providers have done here. In this case, and
also contrary to the Plaintiff's contentions, the EIP would not be entitled to bring a de novo
action against Citimed because the award falls short of $5,000. For the same exact reason,
Plaintiff cannot bring a de novo action against Citimed (as assignor).
14. The two cases cited by Plaintiff in support of itsassignee/assignor argument are not even
tangentially analogous to the case at bar. Long Is. Radiology v. Allstate Ins. Co., 36 A.D. 3d 763
(1st Dep't 2007) addressed whether an insurer could raise the defense of lack of medical
necessity against a radiology facility that provided MRIs pursuant to a prescription. This case
was decided at the summary judgment stage (not the dismissal stage), did not involve a
"combined"
jurisdictional inquiry, and did not involve claims. As such, itis difficult to see how
this case supports the Plaintiff's position.
15. Similarly, Greenberg v. Ryder Truck Rental, Inc., 70 N.Y.2d 574 (1987) addressed
whether the court could adjudicate both the liability and damages phases of the same claim. The
liability and damages phases of the same dispute are in no way analogous to three separate
awards arising from three separate claims submitted by three separate providers. Plaintiff cites
absolutely no authority for its erroneous contention that these three distinct claims, simply
because they arose from services rendered in connection with the same surgery, constitute a
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"dispute"
single or controversy. In fact, they constituted three distinct controversies, which is
why there were three arbitrations held and three awards rendered.
II. Defêñdañt Should Be Awarded Fees and Costs Because Plaintiff Has Engaged in
Frivolous Conduct.
16. Section 130-1.1(a) of the New York State Rules of the Chief Administrative Judge
provides, in pertinent part, as follows:
The court, in its discretion, may award to any party or attorney in
any civil action or proceeding before the court, except where
prohibited by law, costs in the form of reimbursement for actual
expenses reasonably incurred and reasonable attorney's fees,
resulting from frivolous conduct as denied in this Part. In addition
to or in lieu of awarding costs, the court, in itsdiscretion may impose
financial sanctions upon any party or attorney in a civil action or
proceeding who engages in frivolous conduct as defined in thisPart,
which shall be payable as provided in 130-1.3 of this Part.
Rules of the Chief Administrative Judge § 130-1.1(a).
17. Section 130-1.1(c)(1) of the New York State Rules of the Chief Administrative Judge
defines frivolous conduct, in pertinent part, as follows:
For purposes of this Part, conduct is frivolous if:(1) It iscompletely
without merit in law and cannot be supported by a reasonable
argument for an extension, modification or reversal of existing law.
18. As argued in paragraphs 11-14, supra, there is absolutely no basis in law for the
"combined"
Plaintiff's core contention that separate and distinct arbitration awards may be for
the purposes of meeting the five-thousand dollar threshold necessary to institute a court action to
adjudicate a no-fault dispute de novo, as delineated in Insurance Law § 5106(c). Furthermore,
Plaintiff is not arguing that the law should be extended, modified, or reversed.
19. Rather, Plaintiff is merely making a thinly veiled attempt to circumvent the provisions of
Insurance Law § 5106(c) by tacking Defendant Citimed, PA's award (which was less than
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$5,000) onto two larger, separate, and distinct awards, where the Citimed award would not
otherwise meet the five-thousand dollar jurisdictional threshold.
20. As such, Defendant respectfully submits that this Court should exercise its discretion in
attorneys'
awarding costs and reasonable fees incurred in the defense of this frivolous action.
WHEREFORE, Defendant Citimed Services, PA: (1) Respectfully seeks an Order granting the
instant Motion to Dismiss the Complaint in this action for lack of subject matter jurisdiction; (2)
respectfully requests that this matter be handed down for a hearing to determine reasonable costs
attorneys'
and fees; and (3) such other relief as this Court deems just and proper.
Dated: Richmond Hill, New York
September 18, 2019
Res ctfu ly subm tted,
Rachel Drac tman, Esq.
Drachman Katz LLP
I 15-06 Myrtle Avenue
Richmond Hill, NY 11418
718-407-241 1
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Preview
FILED: NEW YORK COUNTY CLERK 09/18/2019 03:16 PM INDEX NO. 156988/2019 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/18/2019 T. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK AMERICAN TRANSIT INSURANCE COMPANY, REPLY AFFIRMATION IN FURTHER SUPPORT OF CITIMED SERVICES. PA'S. MOTION TO DISMISS Plaintiff -against - Index No.: 156988/2019 HEALTH PLUS SURGERY CENTER, LLC, CITIMED SERVICES, PA, and BRADLEY WASSERMAN, MD, PLLC A/0 JIAN-CHENG DANG, Defendants. Rachel Drachman Esq., an attorney duly admitted to the practice of law in the courts of the State of New York, under the penalties of perjury affirms as follows: 1. I am a Partner of Drachman Katz, LLP, attorneys for defendant CITIMED SERVICES, PA (hereinafter "Defendant"), and am fully familiar with the facts and circumstances had herein. 2. This Affirmation is respectfully submitted for an order (1) pursuant to C.P.L.R. 3211(a)(2) dismissing the instant claim as against CITIMED SERVICES, PA, for lack of jurisdiction; (2) pursuant to the Rules of the Chief Administrative Judge, Part 130 et seq., for attorneys' reasonable costs and fees; and (3) granting such other relief that this Court deems just and proper. 3. Defendant incorporates by reference the relevant facts and procedural history, as set forth 1 of 7 FILED: NEW YORK COUNTY CLERK 09/18/2019 03:16 PM INDEX NO. 156988/2019 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/18/2019 more fully in its initialAffirmation in Support of Motion to Dismiss ("Def 's Aff. in Supp."). See Def.'s Aff. in Suna. at ¶¶ 3-10. ARGUMENT L Plaintiff's Comp!±int, as Against Citimed Services, PA, Should Be Dismissed on Jurisdictional Grounds. 4. First and foremost, Defendant clarifies, as stated in its original Affirmation in Support, that the instant Motion is a motion to dismiss for lack of subject matter jurisdiction pursuant to CPLR § 3211(a)(2) and not a motion for summary judgment pursuant to CPLR § 3212. See Def 's Aff. in Supp. at ¶ 2 ("This Affinnation is submitted in support of the Defendant Citimed Services, PA's, motion to dismiss the Plaintiff's Complaint . . ."). While Defendant's original Notice of Motion indicates CPLR § 3212, this was a typographical error. See Def 's Aff. in Supp. 5. This typographical error has resulted in no prejudice to Plaintiff, as the second half of the Plaintiff's Memorandum of Law in Support of Plaintiff's Opposition to Defendant's Motion for Summary Judgment ("Pl.'s Memo. in Op_p.") fully addresses the relevant question of whether the Complaint should be dismissed on jurisdictional grounds pursuant to CPLR § 3211(a)(2). As such, Defendant respectfully requests that this Court treat the instant Motion, as originally intended, as a motion to dismiss for lack of subject matter jurisdiction pursuant to CPLR § 3211(a)(2). 6. To the extent that Plaintiff argues that the prior arbitration awards are not collateral estoppel, such argument is non-responsive. Defendant does not dispute that, in instances where the Court has proper subject matter jurisdiction over a no-fault dispute pursuant to Insurance Law § 5106(c), a plaintiff would be entitled to de novo review of the underlying issues. 7. It isabundantly clear, however, on the face of the statute itself,that an insurer or claimant 2 of 7 FILED: NEW YORK COUNTY CLERK 09/18/2019 03:16 PM INDEX NO. 156988/2019 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/18/2019 may only institute such a court action where the amount of the master arbitrator's award is five thousand dollars or greater, exclusive of interest and attorney's fees. See N.Y. Ins. Law § 5106(c) ("The award of the master arbitrator shall be binding except for the grounds of review set forth in article seventy-five of the civil practice law and rules, and provided further that where the aiñGüñt of such master arbitrator's award is five thousand dollars or greater . .. the insurer or claimant may institute a court action to adjudicate the dispute de novo") (emphasis added). In Avenue C. Med., P.C. v. Encompass Ins. Of MA, 130 A.D.3d 764-65, for example, the plaintiff's no-fault claim was dismissed under CPLR § 3211(a)(2) because the arbitration award had been vacated in itsentirety, making the master arbitrator's award $0 ("Here, the master arbitrator, by vacating the arbitrator's award in its entirety, effectively made no monetary reward, and because the master arbitrator's award was less than $5,000, neither party is entitled to maintain a court action to adjudicate the dispute de novo"). 8. It isundisputed that the underlying amount in controversy, as it pertains to Defendant, is less than five-thousand dollars. In fact, such amount is only $3,029.12. See Plaintiff's Complaint ("Pl.'s Compl.") at ¶ 7; Defendant's Answer ("Def.'s Ans.") at ¶ 7. 9. Plaintiff is making a thinly-veiled attempt to circumvent the provisions of Insurance Law § 5106(c) by combining Citimed Services, PA's claim was two larger claims awarded to Defendant Health Surgery Center PLLC and Defendant Bradley Wasserman, MD, PLLC in the amounts of $19,947.03 and $13,096.70, respectively. 10. Plaintiff's argument that the question of whether this case should be dismissed hinges on "dispute," the meaning of the word as it appears in Insurance Law § 5106(c), makes littlesense. See Pl.'s Memo. in Opp., at p. 7. Plaintiff appears to be suggesting that simply because three different services were rendered by three different providers in connection with the same 3 of 7 FILED: NEW YORK COUNTY CLERK 09/18/2019 03:16 PM INDEX NO. 156988/2019 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/18/2019 "dispute." surgery, itis somehow entitled to combine these three separate claims into a single arbitrator," 11. However, Insurance Law § 5106(c) contemplates "an award by an not "an arbitrator." award or awards by an See Ins. Law § 5106(c). To that effect, because itis undisputed that Defendant Citimed Services, PA's, was only awarded $3,029.12, Plaintiff is not entitled to institute a court action with respect to same. See Avenue C. 130 A.D.3d at 764- Med., 65. See also Hendershot v. Utica Mut. Ins. Col., 475 N.Y.S.2d 558 (3d Dep't 1984); Sansiviero v. Royal Globe Ins. Col., 486 N.Y.S.2d 366 (2d Dep't 1985); Harley v. United Servs. Auto. Ass'n, 191 A.D.2d 768 (3d Dep't 1993). 12. Notably, Plaintiff has cited no authority whatsoever to support itscore contention that separate awards may be combined for the purposes of meeting the prerequisite jurisdictional requirements of Insurance Law § 5106(c). In fact, taken to its logical extension, Plaintiff's argument directly implies that any number of combined rewards, in connection with the same claimant, would be subject to de novo review by the courts (an insurer would be able, for example, to combine fifty separate $100 awards from fifty different providers for the purposes of meeting the $5,000 threshold, so long as they were all services rendered for the same claimant). This would entirely defeat the purpose of binding arbitration, render the $5,000 threshold amount under Insurance Law § 5106(c) virtually toothless, and flood the court system with requests to adjudicate no-fault disputes de novo. 13. Plaintiff fares no better in arguing that by seeking dismissal of the instant claim, Defendant is somehow attempting to avail itselfof greater rights as an assignee than its own assignor. Whether the Regulations initially envisioned splitting services into separate claims is entirely irrelevant; the relevant fact of the matter is that the instant case involves three separate claims for three different providers. Plaintiff claims that "no question would be raised if the 4 of 7 FILED: NEW YORK COUNTY CLERK 09/18/2019 03:16 PM INDEX NO. 156988/2019 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/18/2019 Eligible Injured Person (EIP) brought these bills directly to arbitration . .. [h]owever, because the EIP has assigned his rights to the three providers in this case, Defendant Citimed has moved dismiss." to Contrary to the Plaintiff's contentions, itis axiomatically untrue that Defendant Citimed, in this instance, is asserting that ithas greater rights as an assignee than itsown assignor. Had the EIP not assigned his rights in this instance, he would have received the three subject separate bills from the three subject separate providers, and he would have had to arbitrate all three separately-just as the assignee providers have done here. In this case, and also contrary to the Plaintiff's contentions, the EIP would not be entitled to bring a de novo action against Citimed because the award falls short of $5,000. For the same exact reason, Plaintiff cannot bring a de novo action against Citimed (as assignor). 14. The two cases cited by Plaintiff in support of itsassignee/assignor argument are not even tangentially analogous to the case at bar. Long Is. Radiology v. Allstate Ins. Co., 36 A.D. 3d 763 (1st Dep't 2007) addressed whether an insurer could raise the defense of lack of medical necessity against a radiology facility that provided MRIs pursuant to a prescription. This case was decided at the summary judgment stage (not the dismissal stage), did not involve a "combined" jurisdictional inquiry, and did not involve claims. As such, itis difficult to see how this case supports the Plaintiff's position. 15. Similarly, Greenberg v. Ryder Truck Rental, Inc., 70 N.Y.2d 574 (1987) addressed whether the court could adjudicate both the liability and damages phases of the same claim. The liability and damages phases of the same dispute are in no way analogous to three separate awards arising from three separate claims submitted by three separate providers. Plaintiff cites absolutely no authority for its erroneous contention that these three distinct claims, simply because they arose from services rendered in connection with the same surgery, constitute a 5 of 7 FILED: NEW YORK COUNTY CLERK 09/18/2019 03:16 PM INDEX NO. 156988/2019 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/18/2019 "dispute" single or controversy. In fact, they constituted three distinct controversies, which is why there were three arbitrations held and three awards rendered. II. Defêñdañt Should Be Awarded Fees and Costs Because Plaintiff Has Engaged in Frivolous Conduct. 16. Section 130-1.1(a) of the New York State Rules of the Chief Administrative Judge provides, in pertinent part, as follows: The court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as denied in this Part. In addition to or in lieu of awarding costs, the court, in itsdiscretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in thisPart, which shall be payable as provided in 130-1.3 of this Part. Rules of the Chief Administrative Judge § 130-1.1(a). 17. Section 130-1.1(c)(1) of the New York State Rules of the Chief Administrative Judge defines frivolous conduct, in pertinent part, as follows: For purposes of this Part, conduct is frivolous if:(1) It iscompletely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law. 18. As argued in paragraphs 11-14, supra, there is absolutely no basis in law for the "combined" Plaintiff's core contention that separate and distinct arbitration awards may be for the purposes of meeting the five-thousand dollar threshold necessary to institute a court action to adjudicate a no-fault dispute de novo, as delineated in Insurance Law § 5106(c). Furthermore, Plaintiff is not arguing that the law should be extended, modified, or reversed. 19. Rather, Plaintiff is merely making a thinly veiled attempt to circumvent the provisions of Insurance Law § 5106(c) by tacking Defendant Citimed, PA's award (which was less than 6 of 7 FILED: NEW YORK COUNTY CLERK 09/18/2019 03:16 PM INDEX NO. 156988/2019 NYSCEF DOC. NO. 17 RECEIVED NYSCEF: 09/18/2019 $5,000) onto two larger, separate, and distinct awards, where the Citimed award would not otherwise meet the five-thousand dollar jurisdictional threshold. 20. As such, Defendant respectfully submits that this Court should exercise its discretion in attorneys' awarding costs and reasonable fees incurred in the defense of this frivolous action. WHEREFORE, Defendant Citimed Services, PA: (1) Respectfully seeks an Order granting the instant Motion to Dismiss the Complaint in this action for lack of subject matter jurisdiction; (2) respectfully requests that this matter be handed down for a hearing to determine reasonable costs attorneys' and fees; and (3) such other relief as this Court deems just and proper. Dated: Richmond Hill, New York September 18, 2019 Res ctfu ly subm tted, Rachel Drac tman, Esq. Drachman Katz LLP I 15-06 Myrtle Avenue Richmond Hill, NY 11418 718-407-241 1 7 of 7