Seniorcare Emergency Med. Servs. v. Logisticare Sols. Indep. Practice Ass'n

1

2023 NY Slip Op 31015(U)

SENIORCARE EMERGENCY MEDICAL SERVICES, INC. Plaintiff (s), v. LOGISTICARE SOLUTIONS INDEPENDENT PRACTICE ASSOCIATION, LLC and MODIVCARE SOLUTIONS, LLC, Defendant(s).

No. 524612/2021, Mot. Seq. No. 1

Supreme Court, Kings County

March 27, 2023

Unpublished Opinion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")^[1] 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.

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...