Opinion
10-4167.
Decided May 10, 2011.
Richard Weiss, Esq. Attorney for Plaintiff, New Rochelle, New York.
Brian J. Stone, Esq., Oxman Tulis Kirkpatrick Whyatt Geiger, LLP, Defendant Pro Se, White Plains, New York.
Plaintiff brought these two small claims proceedings each for $5,000.00, the statutory monetary limit, to recover amounts due for medical services rendered. Defendant has made a motion to dismiss on the grounds that:1) plaintiff has failed to state a cause of action pursuant to C.P.L.R. § 3211(a); 2) plaintiff has failed to join necessary parties to the action and 3) plaintiff has engaged in impermissible claim splitting. Plaintiff opposes the motion.
In the case at bar, plaintiff alleges that he rendered medical services to two individuals, Socorro and Roberto Rivera. The Riveras were also clients of the defendant in a personal injury action for which the Riveras received a total settlement of $28,000. Plaintiff alleges that defendant as their attorney promised that plaintiff's claimed debt would be paid out of any settlement proceeds that the Riveras received, however, plaintiff was never paid before the settlement funds were released to the Riveras.
Defendant first contends that plaintiff's action should be dismissed because plaintiff failed to name necessary parties in the instant action. Specifically, the defendant contends that defendant's former clients Socorro and Roberto Rivera should be joined as defendants in the instant action since the alleged monetary debt plaintiff is seeking is the result of medical services rendered by plaintiff for the Riveras. Although joinder of the Riveras in the instant action might result in judicial economy, plaintiff's failure to name the Riveras as defendants in the instant action does not merit dismissal of the action. The general policy of the C.P.L.R. is to limit the scope of indispensable parties to those cases where the determination of the courts will adversely affect the rights of nonparties. Castaways Motel v. Schuyler, 24 NY2d 120 (1969). In the case at bar, the Court finds that the Riveras are not an indispensable party whose absence warrants dismissal of the action.
Defendant's second contention in support of dismissal of the action is that plaintiff has failed to state cause of action because there is no contractual relationship or any other legally enforceable obligation on his part to pay money to the plaintiff. Defendant asserts that plaintiff provided medical services to his former clients, Socorro and Roberto Rivera, who he represented in a personal injury action. Defendant acknowledges that in error only one heathcare provider who had rendered medical services to his former clients was paid from the $28,000.00 total settlement his clients received. However, he contends that the medical services were rendered before he sent a fax to plaintiff in which he indicated that plaintiff would be paid from the settlement amount received by his clients and as such, plaintiff did not sustain damages based upon any reliance upon the fax. Plaintiff further contends in a footnote that there was never any assignment by the Riveras of any interest they had in the settlement funds.
On a motion to dismiss pursuant to CPLR 3211, the pleadings are to be afforded a "liberal construction" and the court is to "accord plaintiffs the benefit of every possible favorable inference." Leon v. Martinez, 84 NY2d 83, 87 (1994). In assessing a motion under CPLR 3211(a)(7) a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint and the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one. Id. at 88. In the instant matter, plaintiff has asserted that the defendant acknowledged that he had a lien on the Riveras' settlement proceeds based upon prior medical services that he had rendered to the Riveras and that defendant indicated that such lien would be satisfied prior to the net settlement proceeds being dispersed to the Riveras. A copy of a fax from defendant to plaintiff in which defendant acknowledges that the debt owed to plaintiff by the Riveras was to be considered a lien against the Riveras settlements funds and that said lien would be satisfied prior to the dispersal of the funds to the Riveras is attached to defendant's moving papers as Exhibit "C". Plaintiff further asserts that defendant released the settlement funds without satisfying plaintiff's lien. Based upon the foregoing allegations plaintiff has stated a cause of action sufficient to withstand defendant's motion to dismiss. See Leon v. Martinez, 84 NY2d 83 (1994); Complete Mgmt. Inc. v. Bader et al., 25 Misc 3d 1241A (Sup. Ct. NY Cty. 2009); Williamsburg South Medical v. Maloney, NYLJ, Feb. 10, 2003 at 20, col 6 (Civ Ct. NY County 2003).
Defendant's third contention is that plaintiff has engaged in impermissible claim splitting and, as such, the actions should be dismissed. Plaintiff's cause of action against defendant is based upon a single breach of an agreement to pay plaintiff's alleged debt that defendant agreed would be considered as a lien against his clients' settlement proceeds. As such, the Courts finds that plaintiff has impermissibly spilt his claim against defendant into two actions and said action are subject to dismissal.
This Court, however, is statutorily charged with the duty to do substantial justice between the parties. Therefore, the Court directs plaintiff to indicate in writing whether plaintiff wants to discontinue the instant actions without prejudice so that plaintiff may commence these actions in a court with the proper monetary jurisdiction or consent to consolidating these actions for total claimed damages of $5,000.00. Plaintiff must submit its written notification of its decision regarding the prosecution of these actions to the Court by June 1, 2011. If plaintiff fails to abide by the Court's aforementioned directive by June 1, 2011 plaintiff's actions will be dismissed without prejudice.
The above constitutes the decision and order of the Court.