Recitation, as required by CPLR §2219(a), of the papers considered in the review of two motions by the AETNA HEALTH AND LIFE INSURANCE COMPANY (Aetna) both seeking an order granting dismissal of the plaintiff’s complaint pursuant to CPLR 3211(a)(1), (3), and (7); and a cross-motion by plaintiff Jamie H. Bassel, DC (Bassel) for an order granting a default judgment in favor of the plaintiff as against Aetna. Papers/Numbered Notice of Motion — Affidavits — Exhibits — Service (11) 1 Notice of X-Motion — Affidavits — Exhibits — Service (14) 2 Affirmation in Opposition to X-Motion — Exhibits — Service 3 Plaintiff Jamie H. Bassel, DC (“Bassel) commenced two companion actions seeking to recover payments from defendant Aetna Health and Life Insurance Company (“Aetna”) for medical treatments that plaintiff, an out-of-network provider of health services, allegedly rendered to an Aetna plan beneficiary, David Carpentier. Under Index Number 016308/19, the plaintiff is seeking the sum of $7,838.00. Under Index Number 8280/19, the plaintiff seeks $13,975.00. The patient, David Carpentier, assigned his benefits to plaintiff Bassel, who provided the medical treatments, and then submitted his claim for payment to Aetna. After denial of reimbursement from the defendant for such medical services, plaintiff initiated these actions in Civil Court, County of Queens, a state court. At the end of the stipulated time for defendant to interpose an answer, Aetna made motions to dismiss in each case, which were denied without prejudice. Immediately thereafter, Aetna made the instant motions, which were calendared in this part under Calendar Number 11 (corresponding to Index Number 8280/19) and Calendar Number 14 (corresponding to Index Number 016308/19). Defendant’s grounds for dismissal are identical in each case, to wit, that the plaintiff’s claim is vitiated based on documentary evidence pursuant to CPLR 3211 (a) (1), that the complaint fails to state a cause of action pursuant to CPLR 3211 (a) (7), and that the plaintiff failed to exhaust its administrative remedies for the ERISA-implicated plan by complying with Aetna’s internal appeal process. The primary thrust of Aetna’s motion is that this matter is preempted By ERISA, based upon the test enunciated in Aetna Health Inc. v. Davila, 542 US 200, 208 [2004]). Plaintiff cross-moves seeking entry of a default judgment as against the defendant in the case under Index Number 8280/19 only. For the reasons that follow, the motion is granted, and the cross-motion is denied. A motion to dismiss a complaint on the ground that a defense is founded on documentary evidence pursuant to CPLR 3211(a)(1) “may be appropriately granted only where the documentary evidence utterly refutes [the] plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v. Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002]; see Rodolico v. Rubin & Licatesi, P.C., 114 AD3d 923, 924-925 [2d Dept. 2014]). “The evidence submitted in support of such motion must be documentary or the motion must be denied” (Cives Corp. v. George A. Fuller Co., Inc., 97 AD3d 713, 714 [2d Dept. 2012]; see Fontanetta v. John Doe 1, 73 AD3d 78, 84 [2d Dept. 2010]; see also David D. Siegel, Practice, McKinney’s Cons Laws of NY, Book 7B, CPLR C 3211:10, at 21-23). In order for evidence submitted in support of a CPLR 3211(a)(1) motion to qualify as “documentary evidence,” it must be “unambiguous, authentic, and undeniable” (Granada Condominium III Assn. v. Palomino, 78 AD3d 996, 996-997 [2d Dept. 2010]; S & J Serv. Ctr., Inc. v. Commerce Commercial Group, Inc., 178 AD3d 977 [2d Dept. 2019]). “[J]udicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case” (Fontanetta v. John Doe 1, 73 AD3d 78, 84-85 [2d Dept. 2010]; see Cives Corp. v. George A. Fuller Co., Inc., 97 AD3d 713 [2d Dept. 2012]). At the same time, “[n]either affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR §3211(a)(1)” (Granada Condominium III Assn. v. Palomino, supra at 997; see Cives Corp. v. George A. Fuller Co., Inc., supra at 714; Suchmacher v. Manana Grocery, 73 AD3d 1017 [2d Dept. 2010]). In the instant case, the movant has submitted different documents in two separate motions, seeking identical relief. For the sake of judicial economy, the court will consider all of the documents in tandem in the instant decision. The motion under Calendar Number 14 contains the Aetna Preferred Provider Organization (PPO) medical plan booklet-certificate. Under Calendar Number 11, the Administrative Services Agreement for the coverage at issue between Aetna and WPP Group USA, Inc, the assignor’s employer, is provided. The affirmation of attorney Frank Strange, counsel for Aetna, serves to identify the subject documents, if not to establish their authenticity. The contents of these documents are uncontroverted. The Administrative Services Agreement provides, in pertinent part, as follows: WHEREAS, Customer [WPP Group USA, Inc.] has est. [sic] a self-funded employee health benefits plan (the “Plan”) for certain eligible individuals pursuant to the Employee Retirement Income Security Act of 1974, as amended, (“ERISA”), as described in Appendix 1 of this Services Agreement; (emphasis supplied) Thus, on its face, the instant agreement is an ERISA plan, subject to the laws applicable thereto. Congress enacted ERISA (29 U.S.C. §1001[b]) to “protect…the interests of participants in employee benefit plans and their beneficiaries” by setting out substantive regulatory requirements for employee benefit plans and to “provid[e] for appropriate remedies, sanctions, and ready access to the Federal courts.” (Aetna Health Inc. v. Davila, 542 US 200, 208 [2004]). The purpose of ERISA is to provide a uniform regulatory scheme for employee benefit plans. In order to accomplish this, ERISA includes comprehensive preemption provisions (see 29 U.S.C.S. §1144) which are intended to ensure that employee benefit plan regulation would be “exclusively a federal concern.” (Alessi v. Raybestos- Manhattan, Inc., 451 U.S. 504, 523 [1981]). Since “the ERISA civil enforcement mechanism is one of those provisions with such extraordinary pre-emptive power that it converts an ordinary state common law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule…causes of action within the scope of the civil enforcement provisions of §502(a) are removable to federal court.” (Aetna Health Inc. v. Davila, 542 U.S. 200, 209 [2004][original punctuation omitted]; Rubin v. Hodes, 2020 US Dist LEXIS 5465, at *25 [EDNY Jan. 13, 2020, No. 18-CV-7403 (SJF)(AKT)]). As stated in 29 U.S.C. §1132[a], ERISA provides that “[a] civil action may be brought — (1) by a participant or beneficiary — (A) for the relief provided for in subsection (c) of this section, or (B) to recover benefits due to him under the terms of his plan” (see 29 USCS §1132 [a][1][B] or ERISA 502(a)(1),(B)]). Hence, a participant or beneficiary may bring a civil action “to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan” (Arditi v. Lighthouse Int’l, 676 F.3d 294, 299 [2d Cir. 2012]). As a consequence, ERISA preempts any state law claim that “duplicates, supplements, or supplants the ERISA civil enforcement remedy.” (Aetna Health Inc. v. Davila, supra at 209 [2004] (“Davila”). In Montefiore Med. Ctr. v. Teamsters Local 272, 642 F3d 321 [2d Cir 2011]), a case which is factually similar to that at bar, the Second Circuit held that under Davila, an action alleging state-law causes of action is completely preempted by ERISA if (a) the plaintiff is a type of party who can bring a claim under Section 502 (a) (1) (B) and (b) the actual claim asserted can be construed as a colorable claim for benefits under Section 502 (a) (1) (B); and (c) there is no other independent legal duty implicated by the defendants actions (see Montefiore, supra at 327-28). Where a participant or beneficiary of an ERISA plan has standing to bring a civil action in federal court to enforce certain rights under the plan (see 29 USC 1132[a][1][B]), the ERISA statute has an exclusive and pre-emptive effect (see Varela v. Barnum Fin. Grp, 644 Fed Appx 30 [2d Cir 2016]). Thus, a healthcare provider to whom a beneficiary has assigned his claim in exchange for healthcare (such as the plaintiff herein) has standing under ERISA to bring an action seeking compensation (see Simon v. GE, 263 F3d 176, 178 [2d Cir 2001]). In Surgicore of Jersey City v. Anthem Life & Disability Ins. Co., (2019 US Dist LEXIS 223323, at *2 [EDNY Dec. 30, 2019, No. 19-cv-3482 (BMC), identical plaintiff's counsel as the instant action]), the United States District Court, Eastern District of New York recently remanded the case brought by a healthcare provider to state court, to wit, the Supreme Court Queens County, since there was an anti-assignment clause in the plan which precluded the provider from bringing the action (see also McCulloch Orth, Servs. PLLC v. Aetna, Inc., 857 F3d 141, 148 [2d Cir. 2017]). However, in the matter before this Court, no anti-assignment clause is present; hence this matter would fall within the decisional scope of Montefiore and Varela. Since the assignor in this matter properly assigned his claim to Bassel in exchange for healthcare, Bassel has standing to bring its claim pursuant to ERISA in Federal Court. The claim here implicates coverage determinations under the relevant terms of the plan, including whether the internal appeal processes were undertaken as required under the plan (Exhibit D, pp. 77-79.) Thus, the requirements of prong one under Davila have been met. As to the second prong of Davila, phone conversations, emails, and like communications between the assignee and the insurer do not give rise to an independent legal duty implicated by the defendant’s actions (Davila, 542 U S at 210.). This is particularly the case insofar as those communications are part of a preapproval requirement mandated by the plan itself (Exhibit D of motion calendar number 14, pp. 17-18). Thus, those conversations are “inextricably interwoven” with the interpretation of plan coverage and benefits, and fall within the purview of 29 USC §1132[a][1][B] and its preemptive nature (see Montefiore, supra at 332; cf. McCulloch Orth, Servs. PLLC v. Aetna, Inc., supra at 150). Accordingly, the instant claim for reimbursement brought by the plaintiff is preempted by ERISA; and therefore, gives rise to exclusive federal subject-matter jurisdiction. As a consequence thereof, this state-court case must be dismissed without prejudice to the plaintiff to commence an action in federal court. It is unnecessary to address the balance of the defendant’s polemics at this time. In opposition to the motion to dismiss, plaintiff cross moves for judgment on the cornerstone of default. Aside from the pre-commencement and pre-trial events, which in part may extend into the fabric of the trial, plaintiff posits that the default brings this matter to conclusion. The parties stipulated to an extension of time to answer the complaint. On the date of expiration of the extension, defendant moved for dismissal. That motion was denied for failure by both parties to furnish the necessary pleadings, a non-substantive basis. The decision and order was entered on September 16, 2019. With immediacy, defendant filed the instant motion to dismiss on September 19, 2019. Plaintiff’s elevation of form over substance is misplaced. Defendant’s three-day delay in advancement of the motion is de minimus at worst and patently reasonable otherwise. In Amaral v. Smithtown News, Inc., 172 AD3d 1287, 1290 [2nd Dept. 2019], (“Amaral”) the Court noted the written stipulation had expired “a little over one month prior…[to the] motion to dismiss.” As noted in Amaral, it is wellsettled that, “the determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court” (citing Government Empls. Ins. Co. v. Avenue C Med., P.C., 166 AD3d 857, 859, [2nd Dept. 2018] “Government Empls.”). Factually, Amaral and Government Empls. delved into what was perceptively, law office failure as the backdrop for any delay in bringing the motion to dismiss. Particularly, Government Empls. analyzed that there “was neither willful nor part of a pattern of dilatory behavior but was purely the result of inadvertent law office failure” as an explanation for the defendant’s behavior. Moreover, the instant defendant’s minuscule delay in no way prejudiced the plaintiff. CPLR §3211(f) plainly states: Service of a notice of motion under subdivision (a) or (b) before service of a pleading responsive to the cause of action or defense sought to be dismissed extends the time to serve the pleading until 10 days after service of notice of entry of the order. On point, the Court in Norma Vigo v. 501 Second Street Holding Corp, (100 AD3d 871 [2nd Dept. 2012]) opined that “a motion to dismiss an action or defense in accordance with CPLR §3211 (a) or (b) serves to so extend the time to serve and file an answer.” Verily, extending the defendant’s time to answer, consistent with the spirit of CPLR §2004, amply serves judicial economy by preserving the defendant’s right to answer while this matter proceeds the path of motion practice. As aforesaid, the defendant has demonstrated a meritorious defense, to wit, federal preemption, thereby furnishing another factor militating against granting a default judgment in this matter. In light of the foregoing, the defendant’s motion seeking dismissal must be granted, this state-court case must be dismissed without prejudice to plaintiff commencing an action in federal court, and plaintiff’s cross-motion seeking a default judgment as against the defendant is denied. The foregoing constitutes the decision and order of the Court. Date: March 12, 2020
