Orthopedic Spine Care of Long Island, P.C. v. Ingardia et al
Filing
22
MEMORANDUM AND ORDER granting 20 Motion for Summary Judgment. For the foregoing reasons, Plaintiff's motion for summary judgment is GRANTED on its account stated claim. The Clerk of the Court is directed to enter judgment in favor of Plainti ff against Defendants, jointly and severally, in the amount of $189,103.94 plus 9% prejudgment interest from June 17, 2009. Plaintiff shall address its request for costs to the Clerk of the Court. The Clerk of the Court is directed to mail each Defendant a copy of this Memorandum & Order and to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 8/25/11. C/ECF; C/M (Valle, Christine)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------X
ORTHOPEDIC SPINE CARE
OF LONG ISLAND, P.C,
Plaintiff,
MEMORANDUM & ORDER
09-CV-2757 (JS)(ETB)
-againstJ.I. and ROCHELLE INGARDIA,
Defendants.
-----------------------------------X
APPEARANCES:
For Plaintiff:
Peter Birzon, Esq.
Peter Birzon & Associates
400 Jericho Turnpike, Suite 100
Jericho, New York 11753
For Defendants:
J.I., pro se
2207 Altman Way
Hephzibah, Georgia 30815
Rochelle Ingardia, pro se
2207 Altman Way
Hephzibah, Georgia 30815
SEYBERT, District Judge:
Orthopedic
Spine
Care
Of
Long
Island,
P.C.
(“Plaintiff”) sued J.I. and Rochelle Ingardia (“Defendants”) on
an account stated claim arising out of unpaid medical bills.
Pending before the Court is Plaintiff’s unopposed motion for
summary
GRANTED.
judgment;
for
the
following
reasons,
the
motion
is
BACKGROUND
Plaintiff
sued
Defendants
for
an
account
connection with medical services rendered in 2006.
when
moving
for
summary
judgment
against
pro
stated
in
As required
se
litigants,
Plaintiff sent Defendants “notice of the requirements of Rule
56.”
Irby v. N.Y.C. Transit Auth., 262 F.3d 412, 414 (2d Cir.
2001).
Defendants have not responded to Plaintiff’s Local Civil
Rule 56.1 Statement of Undisputed Facts.
contained therein are deemed admitted.
Accordingly, the facts
See LOCAL CIV. R. 56.1(c);
Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003)
(“if the opposing party then fails to controvert a fact so set
forth in the moving party’s Rule 56.1 statement, that fact will
be deemed admitted”).
In
December
2003,
as
a
result
accident, J.I. became a patient of Plaintiff.
6.)
of
an
automobile
(Pl. 56.1 Stmt. ¶
At that time, J.I. was under the age of 18 and his mother,
Rochelle Ingardia, signed a Patient Information and History Form
authorizing
payments
of
medical
services rendered to her son.
benefits
(Id. at ¶ 9.)
to
OSCLI
for
any
Additionally, Ms.
Ingardia also agreed to be personally liable for any payments
due for these medical services.
(Id. at ¶ 10.)
2006,
18
J.I.
reached
the
age
of
and
signed
On March 24,
an
additional
Patient Information and History Form agreeing to be personally
liable for the medical services he received.
2
(Id. at ¶ 11.)
In June 2006, Plaintiff’s physicians performed presurgical and extensive spinal surgery procedures on J.I.
at ¶ 12.)
(Id.
For the pre-surgical services rendered, the total
charge was $1,175.
(Id. at ¶ 13.)
The surgery charges totaled
$193,175, which were divided into three claims: claim #618456269
for
$106,500;
claim
#61845630330
#61845630390 for $42,000.
for
(Id. at ¶ 14.)
$43,500;
and
claim
Plaintiff submitted
these claims to Defendants’ insurance company, Empire BlueCross
BlueShield.
(Id. at ¶ 16.)
According to Empire, it made payments on Defendants’
claims directly to the Defendants.
(Id. at ¶ 17.)
Most of
that money, however, was not forwarded to Plaintiff.
Instead,
for
the
services
rendered,
Plaintiff
received
the
following
partial payments: a check for $175 paid by Defendant Rochelle
Ingardia; $91.00 and $3,805.06 paid by Empire directly by check
to Plaintiff.
claim,
and
the
(Id. at ¶ 18.)
amount
Currently, the balance of the
Plaintiffs
$189,103.94 plus interests and costs.
seek
in
this
action,
(Id. at ¶ 19.)
is
On June
4, 2009, Plaintiff demanded the balance in a letter addressed to
J.I. at his current mailing address in Hephzibah, Georgia. (Id.
at ¶¶ 20, 21.) When it received no response, Plaintiff sent a
second demand for payment on June 17, 2009, again addressed to
the Hephzibah, Georgia, address but this time to Ms. Ingardia.
3
(Id. at ¶ 23.)
Both letters were sent certified mail and signed
for by Ms. Ingardia. (Id. at ¶¶ 22, 25.)
Plaintiff, not having received a response from either
Defendant,
filed
this
action
for
the
balance
owed.
Both
Defendants were personally served with the Summons, Complaint
and Amended Complaint at their Hephzibah, Georgia address.
at ¶¶ 28, 29.)
(Id.
Defendants filed their answer shortly thereafter
but have failed to defend this action further.
Additionally, as
required in cases of pro se litigants, after Plaintiff moved for
summary judgment, a notice was sent to Defendants explaining the
consequences and procedures of that motion.
to 56.2.
Pl. Notice Pursuant
Defendants have not opposed the motion.
DISCUSSION
The Court first addresses subject matter jurisdiction
and then considers Plaintiffs’ pending summary judgment motion
and requests for interest, attorney’s fees, and costs.
I. Subject Matter Jurisdiction
As an initial matter, the Court has diversity subject
matter jurisdiction over this case pursuant to 28 U.S.C. § 1332.
Notwithstanding Defendants’ denial that Ms. Ingardia currently
resides in Hephzibah, Georgia, she received certified mail at
the Georgia address and was personally served there.
Willis v.
Westin Hotel Co., 651 F. Supp. 598, 601 (S.D.N.Y. 1986) (“An
individual’s
residence
at
the
time
4
a
lawsuit
is
commenced
provides prima facie evidence of his domicile.”) (emphasis in
original); Pl. Ex. G, H, J.
component
of
the
Defendants
admitted
Although this is not a critical
Court’s
to
analysis,
jurisdiction
in
the
Court
their
notes
answer.
that
Defs.
Answer ¶ 4.
II. Standard of Review for Summary Judgment Motions
The Court shall grant a motion for summary judgment
pursuant to Rule 56 if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.”
FED. R. CIV. P. 56.
The burden of showing that there is
no genuine issue of material fact rests with the moving party.
McLee
v.
Chrysler
Corp.,
109
F.3d
130,
134
(2d
Cir.
1997)
(citing Adicks v. S. H. Kress & Co., 398 U.S. 144, 161 (1970));
see also Christman v. Utica Nat. Ins. Group, 375 F. App’x 106
(2d Cir. 2010).
In determining whether the moving party has met
this burden, “the court is required to resolve all ambiguities
and draw all permissible factual inferences in favor of the
party against whom summary judgment is sought.”
at 134.
McLee, 109 F.3d
Once the moving party has established there is no
genuine issue of material fact, “the non-movant ‘must set forth
specific
facts
showing
that
there
is
a
genuine
issue
for
trial.’”
Weinstock v. Columbia University, 224 F.3d 33, 41 (2d
Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 256, 106 S. Ct. 2505).
5
Rule 56.1 of the Local Civil Rules for the United
States District Courts for the Southern and Eastern Districts of
New York requires that a moving party must submit a statement of
alleged undisputed facts.
Where, as here, the “nonmoving party
chooses the perilous path of failing to submit a response to a
summary judgment motion, [this Court] may not grant the motion
without
first
examining
the
moving
party's
submission
to
determine if it has met its burden of demonstrating that no
material issue of fact remains for trial.”
Amaker v. Foley, 274
F.3d 677, 681 (2d Cir. 2001); see also Champion v. Artuz, 76
F.3d 483, 486 (2d Cir. 1996) (“The fact that there has been no
response to a summary judgment motion does not, of course, mean
that the motion is to be granted automatically.”).
III. Plaintiff’s Account Stated Claim
In New York, an account stated claim “requires ‘an
agreement between the parties to an account based upon prior
transactions between them.’”
LeBoeuf, Lamb, Greene & MacRae,
L.L.P.
61,
v.
Worsham,
185
F.3d
64
(2d
Cir.
1999)
(citing
Chisholm-Ryder Co. v. Sommer & Sommer, 421 A.D.2d 429, 421 (N.Y.
App. Div. 1979)).
“[A] party receiving an account is obligated
to inspect it, and if that party ‘admits it to be correct, it
becomes a stated account and is binding on both parties.’”
Re
Rockefeller
Ctr.
Props.,
46
F.
App’x
40
(2d
Cir.
In
2002)
(citing Kramer, Levin, Nessen, Kamin & Frankel v. Aronoff, 638
6
F. Supp. 714, 719 (S.D.N.Y. 1986)).
A debtor may impliedly
agree to an account stated if he fails to object to the account
within a “reasonable time.”
Yannelli, Zevin & Civardi v. Sakol,
749 N.Y.S.2d 270 (2d Dep’t 2002).
may
also
be
implied
Chisholm-Ryder
if
70
Co.,
the
Additionally, “[a]n agreement
debtor
A.D.2d
at
makes
431.
partial
However,
payment.”
an
account
stated claim fails “where any dispute about the amount is shown
to
have
existed.”
Abbott,
Duncan
&
Wiener
v.
Ragusa,
625
N.Y.S.2d 178 (1st Dep’t 1995).
To
prevail
on
its
motion
for
summary
judgment,
Plaintiff must show that Defendants received the services from
Plaintiff and that there is no dispute as to the amount owed.
As the facts set forth in the Statement of Undisputed Facts are
deemed
true
for
purposes
of
this
motion,
Plaintiff
has
established all of the elements of an account stated claim.
Defendants admit that Plaintiff performed spinal surgery on J.I.
Defs.’
Answer
¶
5.
On
June
9,
2006,
Dr.
Arnold
Schwartz,
President and a shareholder of Plaintiff, performed pre-surgical
medical services on J.I.
See Schwartz Aff. ¶ 3.
On
Paul
June
20,
Plaintiff,
2006,
assisted
surgery on J.I.
Dr.
Alongi,
Schwartz
the
also
shareholder
performing
debt.
established
Its
Practice
7
in
another
the
of
spinal
See Alongi Aff. ¶ 3.
Plaintiff
acknowledged
Dr.
Additionally,
that
Defendants
Administrator,
Joanne
Jasen, testified that she collected J.I.’s Patient Information
and History Forms, which were signed by each Defendant.
Aff. ¶ 3; Pl. Ex. A, D.
Jasen
Those Forms authorized payment to
Plaintiff for medical services rendered to J.I.
Id.
Regarding
the pre-surgical and surgical procedures performed by Plaintiff,
Ms. Jasen submitted the claims, pursuant to the authorization
forms,
to
Defendants’
BlueShield.
insurance
Jasen Aff. ¶¶ 4, 5.
company
Empire
BlueCross
Empire responded with a status
report indicating that payment for the medical services provided
to J.I. was released directly to Defendants.
Jasen Aff. ¶ 7;
Pl. Ex. E, F.
When Defendants failed to forward payment to Plaintiff
for the balance owed, Plaintiff sent each Defendant a demand
letter via certified mail.
Birzon Aff. ¶ 2, 3; Pl. Ex. G, H.
By failing to respond to those demands, Defendants impliedly
assented to the account stated.
Interman Indus. Prod., Ltd. v.
R.S.M. Electron Power, Inc., 37 N.Y.2d 151, 154 (1975) (“in the
absence
of
implied
account
additionally
Defendant
an
objection
stated
concludes
Rochelle
made
may
that
Ingardia
acknowledgment of the debt.
within
be
the
of
found”).
partial
$175.00
reasonable
Further,
payment
also
time,
the
an
Court
rendered
establishes
by
her
See Chisholm-Ryder Co., 70 A.D.2d
at 431; Jasen Aff. ¶ 10.
8
a
Although
Amended
Complaint
received
was
Defendants’
states
Answer
that
“substandard,”
the
without
to
the
Complaint
medical
treatment
supporting
evidence
and
J.I.
or
a
response to the Statement of Undisputed Facts, the Court cannot
say there exists a dispute regarding the amount due.
224
F.3d
material
at
41
issue
(“unsupported
of
fact”);
allegations
Defs.
Answer
¶
do
Weinstock,
not
8.
create
a
Accordingly,
Plaintiff supports all elements of an account stated claim as a
matter of law.
IV. Plaintiff’s Request for Interest, Attorneys’ Fees, and Costs
Plaintiff
fees, and costs.
requests
prejudgment
interest,
attorneys’
Plaintiff has not provided the Court with a
reason from departing from the usual rule that each party pay
its own legal fees, thus its request for attorneys’ fees is
DENIED.
Plaintiff’s request for prejudgment interest at the
statutory rate (9% per annum) is GRANTED.
from
the
existed.”
accrued
earliest
ascertainable
N.Y. C.P.L.R. § 5001.
when
Defendants
impliedly
date
Interest is “computed
the
cause
of
action
Here, the cause of action
acknowledged
the
debt
by
failing to object to Plaintiff’s June 17, 2009 demand letter.
(Pl. Mem., Ex. H.)
9
Plaintiff
should
settle
its
taxable
Clerk of the Court in the first instance.
costs
with
the
FED. R. CIV. P. 54(d);
LOCAL CIV. R. 54.1(a).
CONCLUSION
For
the
foregoing
reasons,
Plaintiff’s
motion
summary judgment is GRANTED on its account stated claim.
for
The
Clerk of the Court is directed to enter judgment in favor of
Plaintiff
against
Defendants,
jointly
and
severally,
in
the
amount of $189,103.94 plus 9% prejudgment interest from June 17,
2009.
Plaintiff shall address its request for costs to the
Clerk of the Court.
The
Clerk
of
the
Court
is
directed
to
mail
each
Defendant a copy of this Memorandum & Order and to mark this
case CLOSED.
SO ORDERED.
/s/ JOANNA SEYBERT______
Joanna Seybert, U.S.D.J.
DATED:
August
25 , 2011
Central Islip, New York
10
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