Civil Court of the City of New York, Queens County, March 12, 2020

Lowey Dannenberg, P.C., White Plains (Frank Strangeman of counsel), for defendant.

Lewin & Baglio, LLP, Westbury (Brendan J. Kearns of counsel), for plaintiff.

Review of two motions by the Aetna Health and Life Insurance Company, 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 for an order granting a default judgment in favor of the plaintiff as against Aetna.

Plaintiff Bassel commenced two companion actions seeking to recover payments from defendant Aetna for medical treatments that plaintiff, an out-of-network provider of health services, allegedly [*2]rendered to an Aetna plan beneficiary, David Carpentier. Under index No. 016308/19, the plaintiff is seeking the sum of $7,838. Under index No. 8280/19, the plaintiff seeks $13,975.

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{**67 Misc 3d at 601} 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 No. 11 (corresponding to index No. 8280/19) and calendar No. 14 (corresponding to index No. 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 the Employee Retirement Income Security Act of 1974 (ERISA) (29 USC § 1001 et seq., as added by Pub L 93-406, tit I, § 502, 88 US Stat 829), 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 No. 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 N.Y., 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] [internal quotation marks omitted]; see Fontanetta v John Doe 1, 73 AD3d 78, 84 [2d Dept 2010]; see also David D. Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C3211:10 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{**67 Misc 3d at 602} 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] [internal quotation marks omitted]; 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 at 997 [internal quotation marks omitted]; see Cives Corp. v George A. Fuller Co., Inc. 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 [*3]the documents in tandem in the instant decision. The motion under calendar No. 14 contains the Aetna Preferred Provider Organization (PPO) medical plan booklet-certificate. Under calendar No. 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 Strangeman, 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 USC § 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 USC § 1144) which are intended to ensure that employee benefit plan regulation would be "exclusively a federal concern." (Alessi v Raybestos-Manhattan, Inc., 451 US 504, 523 [1981].){**67 Misc 3d at 603}

 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 US 200, 209 [2004] [internal quotation marks and alterations omitted]; Rubin v Hodes, 2020 WL 132352, *9, 2020 US Dist LEXIS 5465, *25 [ED NY, Jan. 13, 2020, No. 18-CV-7403 (SJF) (AKT)].)

As stated in 29 USC § 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 ERISA, Pub L 93-406, tit I, § 502 [a] [1]). 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" (29 USC § 1132 [a] [1] [B]; Arditi v Lighthouse Intl., 676 F3d 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 at 209.)

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); (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 [*4]other independent legal duty implicated by the defendants' actions (see Montefiore at 327-328).

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 preemptive effect (see Varela v Barnum Fin. Group, 644 Fed Appx 30 [2d Cir 2016]). Thus, a health care provider to whom a beneficiary has assigned his claim in exchange for health care (such as the plaintiff herein) has standing under ERISA to bring an action seeking compensation (see Simon v General Elec. Co., 263 F3d {**67 Misc 3d at 604}176, 178 [2d Cir 2001]). In Surgicore of Jersey City v Anthem Life & Disability Ins. Co. (2020 WL 32447, *1, 2019 US Dist LEXIS 223323, *2 [ED NY, 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 health care 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 Orthopaedic Surgical 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.

[1] Since the assignor in this matter properly assigned his claim to Bassel in exchange for health care, 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 at 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 US 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 mot calendar No. 14 at 17-18). Thus, those conversations are "inextricably intertwined" 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 at 332; cf. McCulloch Orthopaedic Surgical Servs., PLLC v Aetna Inc. 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.

[2] In opposition to the motion to dismiss, plaintiff cross-moves for judgment on the cornerstone of default. Aside from the pre-commencement and pretrial events, which in part may {**67 Misc 3d at 605}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 minimis at worst and patently [*5]reasonable otherwise. In Amaral v Smithtown News, Inc. (172 AD3d 1287, 1290 [2d Dept 2019]), 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 well-settled that "[t]he determination of what constitutes a reasonable excuse lies within the sound discretion of the trial court" (id., citing Government Empls. Ins. Co. v Avenue C Med., P.C., 166 AD3d 857, 859 [2d Dept 2018]). 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 the failure 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. (Chelli v Kelly Group, P.C., 63 AD3d 632, 633 [1st Dept 2009]; see Government Empls. at 859.) 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 ten days after service of notice of entry of the order."

On point, the Court in Vigo v 501 Second St. Holding Corp. (100 AD3d 871, 872 [2d Dept 2012]) opined that "a motion to dismiss an action or a 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.{**67 Misc 3d at 606}

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.