Opinion
No. 524612/2021 Mot. Seq. No. 1
03-27-2023
SENIORCARE EMERGENCY MEDICAL SERVICES, INC. Plaintiff (s), v. LOGISTICARE SOLUTIONS INDEPENDENT PRACTICE ASSOCIATION, LLC and MODIVCARE SOLUTIONS, LLC, Defendant(s).
Unpublished Opinion
PRESENT: HON. INGRID JOSEPH, J.S.C.
DECISION AND ORDER
HON. INGND HOSEPH JUDGE
The following e-filed papers considered herein: NYSCEF E-filed docs
Notice of Motion/Affirmation in Support/Memo in Support/ Affidavit in Support/Reply...... 6-8; 13
Affirmation in Opposition/Memo in Opposition ................. 10-12
In this matter, Defendants LOGISTIC ARE SOLUTIONS INDEPENDENT PRACTICE ASSOCIATION, LLC ("LogistiCare" Plaintiff) and MODIVCARE SOLUTIONS, LLC ("ModivCare") move via this pre-answer motion pursuant to CPLR §§ 3211 (a)(1) and 3211 (a)(7) for an order dismissing plaintiff SENIORCARE EMERGENCY MEDICAL SERVICES INC., ("SeniorCare")' s complaint. Plaintiff opposes the motion on the grounds that there is no basis for Defendants' motion in either law or fact, in that it is pled with specificity and pled in the alternative therefore the motion must be denied.
Upon information and belief, Defendant LogistiCare was purchased or otherwise rebranded as Defendant ModivCare, which assumed all of Defendant LogistiCare's liabilities
Plaintiff initiated this action by summons and verified complaint filed September 28, 2021. In the complaint plaintiff assert causes of action for quantum meruit, unjust enrichment, failure to pay usual customary and reasonable charges on non-contracted claims under New York State Insurance Law § 3216, breach of contract, negligence for breaching an owed duty to SenioreCare to pay for services invoiced, tortious interference with business relationships, and prima facie tort. to recover for rate payments it alleges are owed by the Defendant. .
This action arises out of a contractual business relationship between SeniorCare, a provider of transportation services and Defendant LogistiCare, a transportation broker, engaged in the business of connecting patients with non-emergency medical transportation providers and arranging transportation for patients to and from medical facilities. In the contract the parties designated the rates that would apply to the patients covered health care plans and they agreed that Defendant would be responsible for paying the medical transportation providers' invoices from funds provided by the patients' insurers. The dispute between the parties in this case arises from Plaintiff's claim that it transported patients covered by plans that had components of Medicaid and Medicare ("Dual Plans") and was paid a rate lower than the agreed rates for patients who were covered by other insurers or by Medicaid alone. Plaintiff also alleges that it suffered losses as a result of defendant's interference with its business relationship by causing hospital and health care facilities software to refrain from or avoid selecting plaintiff to perform transportation services.
Defendant's attorney, in his affirmation of support, claims that the plaintiff s complaint lacks specificity in that Plaintiff has failed to identify which alleged members' transports were not subject to the contract, how many such transports took place, or what alleged health care plans did not have contracted rates. Furthermore, Defendant alleges that Plaintiffs claim, that after the issue of the disputed rate payment was raised, that Defendant enabled patients' hospitals and medical facilities' software hot to select Plaintiff as a transportation option in their software application is without merit since Plaintiff failed to allege how Defendants caused the separate facilities' software to refrain from or avoid selecting Plaintiff, when Defendant did so, or even which facilities software was affected.
In opposition, Plaintiff argues that although the contract failed to specify rates in instances where no health plan rate was applicable or rates for patients covered by Dual Plans, the Defendant nevertheless booked patients of Plaintiffs hospital and healthcare facility partners, and Plaintiff provided services to them and invoiced Defendant at the usual and customary rates. J Furthermore, Plaintiff states that the Defendant did not object to the amount in the invoices after receiving them but unilaterally opted not to pay the usual and customary rate or the Medicare rate, but instead paid plaintiff a rate that was lower than both those rates.
In support of its motion, Plaintiff submits an affidavit from Yitzhak Sobel ("Sobel"), the Director of Finance for SeniorCare, wherein Sobel attests that there were over 1,000 trips from the Health First Complete Care plan alone, with various hospital and healthcare facility partners whose identities initially were not included to reserve their confidentiality. Sobel also maintains that while it is unknown exactly how Defendant made the software exclude Plaintiff as an option for transportation service providers, Sobel maintains that it will be revealed through the discovery process. Nonetheless, Sobel states that the preclusion of Plaintiff from being chosen to provide its transportation serves, was executed without notice and caused Plaintiff to suffer a substantial loss in the volume of calls and the resulting revenue.
In addressing the Defendant's application pursuant to CPLR § 3211, it is well understood that the court must afford Plaintiff s pleading a liberal construction, accept the facts alleged in the complaint as true, accord Plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (see Goshen v. Mutual Life Ins. Co. of NY, 98 N.Y.2d 314, 326 [2002]; Leon v. Martinez, 84 N.Y.2d 83, 87 [1994]). Pursuant to CPLR § 3211(a)(1), a defendant may seek dismissal of a complaint when the defense is founded upon documentary evidence. Moreover, under CPLR § 3211(a)(7), a party may move for judgment dismissing one or more causes of action asserted against him on the ground that the pleading fails to state a cause of action.
Upon a motion to dismiss pursuant to CPLR 3211 (a)(1), dismissal is warranted where documentary evidence refutes plaintiffs factual allegations and establishes a defense as a matter of law (Leon at 88; Goshum v Mutual Life Ins. Co. of New York, 98 N.Y.2d 314 [2002]; Brio v Roth, 121 A.D.3d 733 [2d Dept. 2014]).To constitute documentary evidence, the evidence must be "unambiguous, authentic, and undeniable," such as judicial records and documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable (Granada Condominium III Assn. v. Palomino, 78 A.D.3d 996 [2d Dept. 2010]; Prott v. Lewin & Baglio, LLP, 150 A.D.3d 908 [2d Dept 2017]). An affidavit is not documentary evidence because its contents can be controverted by other evidence, such as another affidavit (Xu v Van Zqienen, 212 A.D.3d 872 [2d Dept. 2023]; Phillips v Taco Bell Corp., 152 A.D.3d 806 [2d Dept. 2017]; Fontanetta v John Doe 1, 73 A.D.3d 78 [2d Dept. 2010]). Where documentary evidence contradicts the allegations of the complaint, the court need not assume the truthfulness of the pleaded allegations (West Branch Conservation Assn, Inc., v County of Rockland, 227 A.D.2d 547 [2d Dept. 1996]; Greene v Doral Conference Center Associates, 18 A.D.3d 429 [2d Dept. 2005]); Penato v. George, 52 A.D.2d 939, 941 [2d Dept 1976]). Allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration (Connaughton v Chipotle Mexican Grill, Inc., 29 N.Y.3d 137 [2017]; Duncan v Emeral Expositions LLC, 186 A.D.3d 1321 [2d Dept. 2020]; Dinerman v Jewish Bd. of Family &Children's Services Inc., 55 A.D.3d 530 [2d Dept. 2008]; Nisari v. Ramjohn, 85 A.D.3d 987, 989 [2d Dept 2011]). The defendant bears the burden of demonstrating that the proffered evidence "conclusively refutes plaintiff s factual allegations (Guggenheimer v Ginzburg, 43 N.Y.2d 268 [1977]; Kolchins v Evolution Mkts. Inc., 31 N.Y.3d 100 [2018]; Goshen v Mutual Life Ins. Co. of NY, 98 NY2D 314 [2002]).
The only documentary evidence submitted in this case is the "Non-Emergency Medical Transportation Account Setup" agreement between the parties submitted by Plaintiff. Defendant, in moving, has only proffered ah attorney's affirmation and a memorandum of law which is not considered documentary evidence within the intended scope of CPLR § 3211(a). Therefore, Defendant has failed to satisfy its prima facie burden utterly refuting the Plaintiffs factual allegations, conclusively establishing a defense as a matter of law.
Accordingly, that branch of Defendant's motion to dismiss is denied.
When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action (Leon at 88; Skefalidis v China Pagoda NY, Inc., 210 A.D.3d 925 [2d Dept. 2022]); Oluwo v Sutton, 206 A.D.3d 750 [2d Dept. 2022]; Sokol v Leader, 74 A.D.3d 1180 [2d Dept. 2010]). Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss (Eskridge v Diocese of Brooklyn, 210 A.D.3d 1056 [2d Dept. 2022]; Zurich American Insurance Company v City of New York, 176 A.D.3d 1145 [2d Dept. 2019]; EBCI Inc. v Goldman, Sachs &Co., 5 N.Y.3d [2005]).
On a motion made pursuant to CPLR 3211(a)(7) to dismiss a complaint, the burden never shifts to the non-moving party to rebut a defense asserted by the moving party (Sokol at 1181; Rovello v Orofino Realty Co. Inc., 40 N.Y.2d 970 [1976]). CPLR 3211 allows a plaintiff to submit affidavits, but it does not oblige1 him or her to do so on penalty of dismissal (Id.; Sokol at 1181). Affidavits may be received for a limited purpose only, serving normally to remedy defects in the complaint and such affidavits are not to be examined for the purpose of determining whether there is evidentiary support for the pleading (Id.; Rovello at 635; Nonon at 827). Thus, a plaintiff will not be penalized because he has not made an evidentiary showing in support of its complaint.
Unlike on a motion for summary judgment, where the court searches the record and assesses the sufficiency of evidence, on a motion to dismiss, the court merely examines the adequacy of the pleadings (Davis v. Boeheim, 24 N.Y.3d 262, 268 [2014]). The appropriate test of the sufficiency of a pleading is whether such pleading gives sufficient notice of the transactions, occurrences, or series of transactions or occurrences intended to be proved and whether the requisite elements of any cause of action known to our law can be discerned from its averments (V. Groppa Pools, Inc. v. Massello, 106 A.D.3d 722, 723 [2d Dept 2013]; Moore v Johnson, 147 A.D.2d 621 [2d Dept 1989]).
To recover damages for unjust enrichment, a plaintiff must show (1) the defendant was enriched, (2) at the plaintiffs expense, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered (Mobarak v Mowad, 117 A.D.3d 998 [2d Dept. 2014]; Mandarin Trading Ltd. v Wildenstein, 16 N.Y.3d 173 [2011]). The elements of a cause of action for quantum meruit are (1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefore, and (4) the reasonable value of the services (Stephen B. Gleich &Associates v Grisipis, 87 A.D.3d 216 [2d Dept. 2011]; AHA Sales, Inc. v Creative Bath Products, Inc., 58 A.D.3d 6 [2d Dept. 2008]). In instances where the complaint contains two counts for the same services, one under contract and one on quantum meruit, the plaintiff is not compelled on motion in advice of the trial to elect upon which count he will proceed, since plaintiff is entitled to plead inconsistent causes of action in the alternative (see generally CPLR § 3014- Katcher v Browne, 19 A.D.2d 744 [2d Dept. 1963]; Gold v 29-15 Queens Plaza Realty, LLC, 43 A.D.3d 866 [2d Dept. 2007]; Pickering v State. 30 A.D.3d 393 [2d Dept. 2006]; Perkins v Volpe, 146 A.D.2d 617 [1989]; Breslin Realty Dev. Corp, v 112 Leaseholds, 270 A.D.2d 299 [2d Dept. 2000]; Rubin v Cohen, 129 A.D. 395 [1908]).
Accordingly, that branch of the motion for an order pursuant to CPLR § 3211(a)(7) dismissing Plaintiffs second and third causes of action for unjust enrichment and quantum meruit is denied as Plaintiffs Complaint adequately states a cause of action for quantum meruit, inter alia, paragraphs 24-38 of the Complaint and unjust enrichment, inter alia paragraphs 39-44 of the Complaint.
Plaintiffs third cause of action is for failure to pay usual customary and reasonable charges on non-contracted claims under New York State Insurance Law § 3216. New York State Insurance Law § 3216(a)(24)(A)(i) states that "every policy which provides major medical or similar comprehensive-type coverage shall include coverage for prehospital emergency medical services for the treatment of an emergency condition when such services are provided by an ambulance service issued a certificate to operate pursuant to section three thousand five of the public health law." Parties, however, have conceded that Plaintiff was to perform non-emergency medical transportation of patients and it is undisputed that Plaintiff s claims pursuant to the agreement involved non-emergency related transportation service. Moreover, New York State Insurance Law 3216(a)(24)(A)(i) and (ii) clarifies that "prehospital emergency medical services" and "emergency condition" pertains to situations in which patients need immediate medical attention, and Plaintiff has not alleged that any of the contracted or non-contracted transports were for emergency related services. Plaintiff also refers to New York State Insurance Law §§ 3216(i)(24)(B) and 3216(i)(24)(C), which state "payment by an insurer pursuant to this section..." and that "an insurer shall provide reimbursement..." are inapplicable as these sections pertain to insurer obligations, and it is undisputed that Defendant is not an insurer.
Accordingly, that branch of the motion for an order pursuant to CPLR 3211 (a)(7) dismissing the Plaintiffs third cause of action for failure to pay usual customary and reasonable charges on non-contracted claims under New York State Insurance Law § 3216 is granted.
To plead a cause of action for breach of contract, a plaintiff must allege (1) the existence of a contract, (2) plaintiffs performance pursuant to the contract, (3) defendant s breach of the contractual obligations; and (4) damages resulting from that breach (34-06 73, LLC v Seneca Insurance Company, 39 N.Y.3d 44 [2022]). Plaintiffs allegations must identify the provisions of the contract that were breached (Id.). Here, the Complaint does not set forth the particular terms of the contract upon which Plaintiffs claim is based, nor were the particular terms specified in the Affidavit of Sobel. The allegations made are vague and speculative and therefore are insufficient to support a claim for breach of contract.
Accordingly, that branch of the motion for an order pursuant to CPLR § 3211(a)(7) dismissing Plaintiffs fourth cause of action for breach of contract is granted as Plaintiff s Complaint and submitted affidavit fails to identify specific provisions of the contract that were breached.
To establish a prima facie case of negligence, a plaintiff must demonstrate (1) a duty owed by the defendant to the plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom (Solomon by Solomon v City of New York, 66 N.Y2d 1026 [1985]). As a general rule, breach of contract does not give rise to tort liability unless a legal duty independent of the contract has been violated (Teller v Bill Hayes, Ltd, 213 A.D.2d 141 [1995]; Clark-Fitzpatrick Inc. v Long Island R. Co., 70 N.Y.2d 382 [1987]). Absent this legal duty independent of the contract, a claim for negligence is merely a restatement of the contractual obligations asserted in the cause of action for breach of contract (Clark-Fitzpatrick Inc. at 390). Where plaintiff essentially seeks enforcement of the bargain, the action should proceed under a contract theory (Id.; Sommer v Federal Signal Corp., 79 N.Y.2d 540 [1992]).
Here Plaintiffs claim for negligence stems from allegations that Defendant owed Plaintiff a duty to appropriately process and pay invoices with respect to transports that were not covered under the agreement and that Defendant breached that duty by underpaying on these invoices. This allegation however is merely a restatement, albeit in slightly different language, of the implied contractual obligations asserted in the cause of action for breach of contract.
Accordingly, that branch of the motion for an order pursuant to CPLR § 3211(a)(7) dismissing Plaintiffs fifth cause of action for negligence is granted as Plaintiff has failed to plead a legal duty independent of the contract that has been violated.
To state a cause of action for tortious interference with business relations, it must be alleged that there was (1) the existence of a business relationship with a third party, (2) that the defendant knew of and intentionally interfered with, (3) that the defendant acted solely out of malice or used improper or illegal means that amounted to a crime or independent tort; and (4) that the defendant's interference caused injury to the relationship with the third party (Stuart's, LLC v Edelman, 196 A.D.3d 711 [2d Dept. 2021]; 106 N. Broadway, LLC v Lawrence, 189 A.D.3d 733 [2d Dept. 2020]; 684 E. 222nd Realty Co., LLC v Sheehan, 185 A.D.3d 897 [2d Dept. 2020]). Tortious interference with business relationships is a distinct and separate claim from tortious interference with contract (see Carvel Corp, v Noonan, 3 N.Y.3d 359 [2004]). The former applies to situations where a third party would have entered into, or extended a contractual relationship with the plaintiff but for the wrongful and intentional acts of the defendant (Id.).
Similarly, to state a cause of action for tortious interference with contract, the plaintiff must allege (1) the existence of a valid contract between it and a third party, (2) the defendant's knowledge of that contract, (3) the defendant's intentional procurement of the third party's breach of that contract without justification, and (4) damages (Lama Holding Co. v Smith Barney Inc., 88 N.Y.2d 413 [1996]; Ferrandino & Son, Inc. v Wheaton Builders, Inc,, LLC, 82 A.D.3d 1035 [2d Dept. 2011]). The plaintiff must specifically allege that the contract would not have been breached but for the defendant's conduct (Ferrandino & Son, Inc. at 1036; U.S. Bank National Association v Khan Property Owner, LLC, 206 A.D.3d 851 [2d Dept. 2022], Kismo Apartments, LLC v Rivera, 180 A.D.3d 1033 [2d Dept. 2020]). Although on a motion to dismiss the allegations in a complaint should be construed liberally, to avoid dismissal of a tortious interference with contract claim, a plaintiff must support his claim with more than mere speculation (Ferrandino &Son, Inc. at 1036; quoting Burrowes v Combs, 25 A.D.3d 370 [1st Dept. 2006]; Influx Capital, LLC v Pershin, 186 A.D.3d 1622 [2d Dept. 2020]).
Here, Plaintiff has not sufficiently plead causes of action for tortious interference of business relationships or contract but rather merely asserts in a conclusory fashion and speculatively that Defendant's actions interfered with Plaintiff s business relationships or contracts with third party healthcare facilities. Plaintiff does not provide a factual basis for the claim and simply alleges that upon information and belief, Defendant took actions that caused the healthcare facilities to be unable to select Plaintiff as a transportation provider. Additionally, Plaintiff failed to allege that but for Defendant's actions, the healthcare facilities would have continued to work with Plaintiff.
Accordingly, that branch of the motion for an order pursuant to CPLR § 3211(a)(7) dismissing Plaintiffs sixth cause of action for tortious interference with business relationships is granted. .
The elements for a cause of action sounding in prima facie tort include (1) intentional infliction of harm, (2) resulting in special damages, (3) without excuse or justification, (4) by an act or series of acts which are otherwise legal (Curiano v Suozzi, 63 N.Y.2d 113 [1984]). In general, where relief may be afforded under traditional tort concepts, prima facie tort may not be invoked as a basis to sustain a pleading which otherwise fails to state a cause of action in conventional tort (Freihofer v Hearst Corp., 65 N.Y.2d 135 [1985]; see Ruza v Ruza, 286 A.D. 767 [1st Dept. 1955]; Halio v Lurie, 15 A.D.2d 62 [2d Dept, 1961]; Knapp Engraving Co. v Keystone Photo Engraving Corp., 1 A.D.2d 170 [1st Dept. 1956]). However, where a tort remedy exists, a party will not be foreclosed from pleading, as alternative relief, a cause of action for prima facie tort as there may be instances where the traditional tort cause of action will fail, and plaintiff should be permitted to assert this alternative claim (Freihofer at 143; Board of Ed. Of Farmingdale Union Free School Dist. V Farmingdale Classroom Teachers Ass'n, 38 N.Y.2d 397 [1975]). Here, Plaintiff alleges in a conclusory manner that the Defendants actions were intentionally done "solely and malevolently" to cause harm to Plaintiff s business and that the specific actions Defendant took will be revealed through the discovery process, which generally would be insufficient to plead a cause of action. However, CPLR 3211(d) protects a party in situations where should it appear from the affidavits submitted that facts essential to justify opposition may exist but cannot be stated or are within the exclusive control of the moving party, the Court may deny the motion. At this time, further discovery is needed to support Plaintiff s claim.
Accordingly, that branch of the motion for an order pursuant to CPLR § 3211(a)(7) dismissing Plaintiffs seventh chuse of action for prima facie tort is denied with leave to renew after discovery is completed.
NOW, it is hereby
ORDERED, that Defendant's motion to dismiss Plaintiffs Complaint pursuant to CPLR 3211(a)(1) is denied; and it is further
ORDERED, that Defendant's motion to dismiss Plaintiffs causes of action pursuant to CPLR 3211 (a)(7) for quantum meruit, unjust enrichment are denied; and it is further
ORDERED, that Defendant's motion to dismiss Plaintiffs causes of action pursuant to CPLR 3211(a)(7) for prima facie tort is denied with leave to renew after discovery is completed, and it is further
ORDERED, that Defendant's motion to dismiss Plaintiffs causes of action pursuant to CPLR 3211(a)(7) premised on New York Insurance Law 3216, breach of contract, negligence, and tortious interference with business relationships, are granted.
This constitutes the decision and order of the court.