Lopez v Novy

Annotate this Case
[*1] Lopez v Novy 2008 NY Slip Op 51718(U) [20 Misc 3d 1133(A)] Decided on August 13, 2008 City Court Of Mount Vernon Seiden, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 13, 2008
City Court of Mount Vernon

Bernitha Lopez, Plaintiff,

against

Michael Novy, DDS and 1199SEIU, Defendants.



SC 5192-07



Brian Johnson, Esq.

Attorney for Plaintiff

669 North Terrace Avenue, Suite 48

Mt. Vernon, New York 10552

Lori Fishman, Esq.

Law Office of Lori D. Fishman

Attorney for Defendant Novy

303 South Broadway, Suite 435

Tarrytown, New York 10591

Suzanne Metzger, Esq.

Associate Counsel, Legal Department

Attorney for Defendant 1199SEIU Benefit Fund

1199SEIU National Benefit Fund

330 West 42nd Street, 31st Floor

New York, New York 10036

Adam Seiden, J.

In this action by plaintiff seeking to recover payment for failure to pay an insurance claim, failure to provide proper dental services and breach of contract, Defendant 1199SEIU National Benefit Fund for Health and Human Service Employees moves to dismiss the complaint against it on the ground that: 1) it is an equity claim against a trust fund, for which the Court lacks jurisdiction, 2) the state law claims are barred against it under the Employees Retirement Income Security Act of 1974, 29 USC §1001 et seq. ("ERISA"), 3) plaintiff has failed to exhaust administrative remedies, and 4) service of the complaint was improper. Plaintiff does not oppose the motion. Defendant Novy has submitted no papers in opposition to the motion.

In support of the motion, plaintiff has submitted the affidavit of Jennifer Pagan, Records Coordinator in the Legal Operations Department for the 1199SEIU Benefit and Pension Plans. Ms. Pagan affirms that the 1199SEIU Fund is a self-funded employee welfare plan governed by ERISA that provides eligible participants with health care and welfare or pension benefits. Ms. Pagan further affirms that the welfare benefits are not insurance companies and are not subject to New York State Insurance law. Ms. Pagan states that plaintiff may still be a participant or beneficiary of the 1199 SEIU National Benefit Fund, and although she alleges in her complaint that she is owed monies for Defendants' "failure to provide proper services" and "breach of agreement", Defendant 1199SEIU Benefit Fund does not provide services. Ms. Pagan further states that no contract exists between claimant and Defendant 1199SEIU, and further, that Defendant 1199SEIU does not have a record of denying any claims or parts of the claims in the amount of $3,740.00 for the plaintiff. Ms. Pagan also affirms that if a Fund participant objects to the Fund's denial of payment for healthcare benefits, according to the terms of the Plan at the time relevant to this dispute, she, or the provider, is required to file an appeal to the Trustees before contesting the matter in court. A copy of the Fund's appeal procedure is attached as Exhibit D. Finally, Ms. Pagan states that a review of Defendant 1199SEIU's records do not indicate that plaintiff ever made an appeal to the Fund's Board of Trustees.

In response to Defendant 1199SEIU's motion, plaintiff's counsel states "I have [*2]no objection to 1199SEIU's Motion to Dismiss."

Suzanne Metzger, counsel for Defendant 1199SEIU National Benefit Fund for Health and Human Service Employees, asserts that plaintiff's action consists of state common law claims that are pre-empted by ERISA, and that the complaint against the 1199 Fund must therefore be dismissed. For the reasons that follow, this Court agrees that the claims against the 1199 Fund must be dismissed.

"ERISA provides an extensive and complex pre-emption scheme to facilitate the maintenance of a uniform national law governing employee benefit plan administration" (Harvey v Members Employees Trust for Retail Outlets, 96 NY2d 99, 106 (2001)). ERISA's general pre-emption statute directs that ERISA "shall supersede any and all State laws insofar as they may...relate to any employee benefit plan" (Id.; 29 USC §1144(a)). This pre-emption applies to State common-law claims as well as to statutory laws (Dalton v Peninsula Hospital Center, 164 Misc 2d 912 (Sup. Ct, NY Co. 1995) citing Pilot Life Ins. Co. v Dedeaux, 481 US 41, 44 (1987)). The effect of ERISA pre-emption is wholly to eliminate state law claims by benefit plan participants and beneficiaries, leaving them only the causes of action specifically provided in the ERISA statute's civil enforcement provisions (Smith v Dunham-Bush, Inc., 959 F2d 6, 15 (2d Cir. 1992)).

In the complaint, plaintiff alleges failure to pay an insurance claim, failure to provide proper services and breach of contract for the failure of the 1199 Fund to pay her dental bills, all of which are state common-law causes of action. She does not contest the assertion that the 1199 Fund is a plan governed by ERISA. Plaintiff is, however, not without a remedy. ERISA authorizes a participant, such as plaintiff to bring a civil action under that statute to recover accrued benefits due under the plan and to seek a declaratory judgment on the entitlement to benefits provided by the plan. This Court finds that the claims contained in the plaintiff's complaint are pre-empted by ERISA and must therefore be dismissed (see Nalzenec v Blue Cross of Western New York, Inc., 191 AD2d 982 (4th Dept 1993); Logan v Empire Blue Cross and Blue Shield, 275 AD2d 187 (2d Dept 2000)).

The complaint as to Defendant 1199 SEIU is hereby dismissed. In light of the foregoing, defendant's remaining bases for dismissal need not be addressed.

Plaintiff and Defendant Novy are directed to appear for trial on September 10, 2008 at 6:30 pm.

The above constitutes the Decision and Order of the Court.

Dated:August 13, 2008

Mount Vernon, New York

____________________________

HON. ADAM SEIDEN [*3]

Associate City Judge of Mount Vernon

To:Brian Johnson, Esq.

Attorney for Plaintiff

669 North Terrace Avenue, Suite 48

Mt. Vernon, New York 10552

Lori Fishman, Esq.

Law Office of Lori D. Fishman

Attorney for Defendant Novy

303 South Broadway, Suite 435

Tarrytown, New York 10591

Suzanne Metzger, Esq.

Associate Counsel, Legal Department

Attorney for Defendant 1199SEIU Benefit Fund

1199SEIU National Benefit Fund

330 West 42nd Street, 31st Floor

New York, New York 10036