Professional Orthopedic & Sports P.T.P.C. v Pittore

[*1] Professional Orthopedic & Sports P.T.P.C. v Pittore 2012 NY Slip Op 51398(U) Decided on July 26, 2012 City Court Of Poughkeepsie Moloney, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 26, 2012
City Court of Poughkeepsie

Professional Orthopedic & Sports P.T.P.C., Plaintiff,

against

Mary Pittore, ANTHONY PITTORE, Defendants.



CV-11-3930



Pragna Parikh, Esq.

Smith Carroad Levy & Wan, P.C.

Attorneys for the Plaintiff

5036 Jericho Turnpike

Commack, NY 11725

James J. D'Ambrosio, Esq.

D'Ambrosio & D'Ambrosio

Attorney for the Defendant, Anthony Pittore

42 Main Street

Irvington, NY 10533

Mary Pittore

Defendant, pro se

510 Maloney Road, Apt. Q7

Poughkeepsie, NY 12603

Katherine A. Moloney, J.

The plaintiff seeks an Order granting summary judgment pursuant to C.P.L.R. §3212, on the grounds that the defendants have failed to raise a meritorious defense to the cause of action asserted in the complaint. Plaintiff's motion is supported by the affidavit of Elizabeth Rich, plaintiff's Director of Centralized Billing, dated March 8, 2012, together with Exhibits A through E. Defendant, Anthony Pittore, has opposed the motion and cross-moved for summary judgment. Defendant's motion is supported by the affirmation of James J. D'Ambrosio, dated April 12, 2012, the affidavit of Anthony S. Pittore, dated April 10, 2012, together with Exhibits. Plaintiff has filed a reply in further support of its motion for summary judgment and in opposition to defendant, Anthony Pittore's, cross-motion for summary judgment, supported by the affirmation of Timothy Wan, Esq., dated April 27, 2012. Defendant, Anthony Pittore, has filed a reply affirmation in further support of its cross-motion for summary judgment of James J. D'Ambrosio, dated May 29, 2012.

Defendant, Mary Pittore, has not filed any opposition to the plaintiff's motion for summary judgment or defendant, Anthony Pittore's, cross-motion for summary judgment.

Now having duly deliberated upon the motion, cross-motion, the opposition, and the replies [*2]filed herein, together with the facts and proceedings held herein and before, the Court finds and determines the motion as follows:

FACTS & ARGUMENTS:

On December 8, 2011, plaintiff filed the instant lawsuit against both defendants, seeking to recover $3,555.00 in unpaid medical expenses for physical therapy services rendered to the defendant, Mary Pittore. On April 10, 2012, plaintiff filed the affidavits of service for the summons and complaint with the Court, wherein the process server averred that service was completed upon both defendants on January 18, 2012 by nail and mail service at 276 Lauer Road, Poughkeepsie, New York. The defendant, Anthony Pittore served his answer on January 25, 2012. [FN1] The defendant, Mary Pittore, never interposed an answer to the summons and complaint. Plaintiff now seeks summary judgment against both defendants.

Plaintiff argues that summary judgment should be granted against defendant Mary Pittore because she received physical therapy services from the plaintiff between July 9, 2009 through August 27, 2009 and signed a consent form guaranteeing payment. Defendant, Mary Pittore, was billed at 276 Lauer Road, Poughkeepsie, NY 12603. Exhibit E, Plaintiff's Motion for Summary Judgment. Thus, when plaintiff received notice that defendant Mary Pittore's insurance plan had retroactively withdrew payment and denied coverage, defendants were obligated to pay for the entire cost of all services rendered plus a collection fee - totaling $3,555.00.

Plaintiff argues that summary judgment should be granted against the defendant Anthony Pittore, on the grounds that the doctrine of necessaries makes him responsible for his spouse's necessary debts - which here constitute his ex-wife's medical bills.

In opposition to the motion and in support of his cross-motion for summary judgment, the defendant Anthony Pittore argues that he and his wife divorced six (6) years prior to his ex-wife receiving the medical services for which plaintiff's seeks to be reimbursed, and their divorce decree specifically absolves him from financial responsibility relative to his ex-wife's medical bills and coverage.

In reply and further support of its motion, plaintiff argues that Mary Pittore presented an insurance card with defendant, Anthony Pittore's name on it, that he failed to object to plaintiff seeking payment against his insurance company, and in so doing defendant Anthony Pittore impliedly requested that health insurance coverage be provided to his ex-wife and payment made for medical services rendered to her.

In reply and further support of its cross-motion for summary judgment, the defendant Anthony Pittore, contends that plaintiff's claim for recovery can only be against the defendant Mary Pittore, from whom the defendant has been divorced for years and who is the only one responsible for providing plaintiff with an insurance card with her name on it, knowing that she was not insured through her ex-husband's health plan at the time she received medical services from the plaintiff.

ANALYSIS AND DETERMINATIONA.Plaintiff's Motion for Summary Judgment against defendant, Mary Pittore:

As a preliminary matter, plaintiff's motion for summary judgment against Mary Pittore is [*3]premature and must be denied. The timing upon which a motion for summary judgment may be made is after issue has been joined. C.P.L.R. § 3212(a). A motion for summary judgment that is made absent the joinder of issue is premature, for joinder of issue is a necessary prerequisite to making the motion, and has been strictly adhered to by the Courts. C.P.L.R. § 3212(a); City of Rochester v. Chiarella, 65 NY2d 92, 101(1985); Patten Corporation v. Association of Property Owners of Sleepy Hollow Lake, Inc., 172 AD2d 996 (3d Dept. 1991); Miller v. Nationwide Mutual Fire Insurance Co., 92 AD2d 723 (4th Dept. 1983).

Here, no answer has been interposed by the defendant, Mary Pittore. Thus, in the absence of defendant's Answer having been served and filed, issue has not been joined, and this Court is constrained to find plaintiff's motion for summary judgment to be premature. JLJ Management Co. v. Great Atlantic and Pacific Tea Co., Inc., NYLJ, April 10, 1991 (Rockland County Sup. Ct)(holding that where plaintiff moved for leave to serve an amended complaint, issue was not joined on the new cause of action and summary judgment was therefore premature) citing City of Rochester v. Chiarella, 65 NY2d 92, 101(1985).

Therefore, in view of the foregoing, plaintiff's motion for summary judgment against defendant Mary Pittore is denied.

B.Plaintiff's Motion for Summary Judgment against defendant, Anthony Pittore:

Plaintiff's motion for summary judgment against the defendant, Anthony Pittore is denied as well.

It is well settled that "the drastic remedy of summary judgment is appropriate only where a thorough examination of the merits clearly demonstrates the absence of any triable issue of fact." Vamattam v. Thomas, 205 AD2d 615 (2d Dept. 1994) citing Piccirillo v. Piccirillo, 156 AD2d 748 (2d Dept. 1989). The party seeking summary judgment must sufficiently establish the cause of action (or defense) and must tender evidentiary proof in admissible form to warrant the court, as a matter of law, to direct judgment in their favor. Bush v. St. Clare's Hospital, 82 NY2d 738, 739 (1993) citing Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). In short, the plaintiff bears the initial burden to show a prima facie case of entitlement to judgment by demonstrating the absence of any material issues of fact. Alverez v. Prospect Hospital et al., 68 NY2d 320 (1986); see North Fork Bank Corp. v. Graphic Forms Assoc., et al., 36 AD3d 676 (2d Dept. 2007).

If the plaintiff meets his burden of proof, the burden shifts to the defendant to come forward with evidentiary facts demonstrating the existence of a material issue of fact which would defeat summary judgment. Moezinia v. Baroukhian, 247 AD2d 452 (2d Dept. 1998). More specifically, the party opposing the motion must "show facts sufficient to require a trial of any issue of fact" in order to defeat summary judgment. Zuckerman, supra at 562.

Here, plaintiff's motion for summary judgment against the defendant, Anthony Pittore, is grounded upon the doctrine of necessaries. The doctrine of necessaries is based upon the common-law rule that renders a husband and a wife jointly and severally liable for the necessary expenses of either spouse. Medical Business Assoc., v. Stein, 183 AD2d 86, 96 (2d Dept. 1992). However, jurisdictions throughout the country have modified this doctrine and the Second Department has specifically held that liability under it has never been automatic or unrestricted. Id. at 97. Rather, a creditor seeking to recover a debt against the non-debtor spouse retains the burden of demonstrating that the necessaries were furnished on the non-debtor spouse's credit, and that the non-debtor spouse has the ability to satisfy the debt. Medical Business Assoc., Inc. v. Steiner et al., 183 [*4]AD2d 86 (2d Dept. 1992); Promenade Nursing Home Inc., v. Lacey, 10 Misc 3d 1066(A)(Queens County 2005). Here, the plaintiff has failed to do either, and thus has not met his burden of proof in establishing that the necessaries were furnished upon Mr. Pittore's credit or that he even has the ability to satisfy the debt. First, the parties were not even married at the time the medical services were rendered. Secondly, the divorce decree specifically absolves Mr. Pittore from any obligations relative to Mary Pittore's health insurance coverage or payment of bills for medical services rendered. Based upon the foregoing, together with the fact that the plaintiff failed to introduce any evidence in sufficient form that Mr. Pittore has the ability to satisfy the debt, the plaintiff's motion for summary judgment is denied.

C. Defendant, Anthony Pittore's, Cross-Motion for Summary Judgment:

On the other hand, defendant's cross-motion for summary judgment sufficiently demonstrates with evidentiary proof in admissible form the absence of any triable issue of fact for which the defendant, Anthony Pittore, can be held liable. Vamattam v. Thomas, 205 AD2d 615 (2d Dept. 1994) citing Piccirillo v. Piccirillo, 156 AD2d 748 (2d Dept. 1989); Bush v. St. Clare's Hospital, 82 NY2d 738, 739 (1993) citing Zuckerman v. City of New York, 49 NY2d 557, 562 (1980). As such, the burden shifts to the plaintiff on this cross-motion for summary judgment to come forward with evidentiary facts demonstrating the existence of a material issue of fact to defeat summary judgment. Moezinia v. Baroukhian, 247 AD2d 452 (2d Dept. 1998). Here, plaintiff has failed to "show facts sufficient to require a trial of any issue of fact" in order to defeat defendant's cross-motion for summary judgment. Zuckerman, supra at 562. There is nothing before this Court demonstrating that a triable issue of fact exists for which Anthony Pittore could be held liable for these debts.

This is because Mr. Pittore can not be held liable for necessaries after he and Mary Pittore divorced. There is a rebuttable presumption that necessaries purchased by a married woman are purchased by her as agent of her husband. Roach v. Mamakos, 196 Misc 2d 456 (Nassau County 2003). This presumption is negated when the parties are separated - or divorced, as is the case here. Medical Bus. Assoc. v. Steiner, 183 AD2d 86 (2d Dept. 1992); see Constable v. Rosener, 82 A.D. 155 (1903); Amplo v. DiMauro, 52 Misc 2d 810 (1967). Defendant has demonstrated with sufficient evidentiary proof that the parties were divorced in 2006. Exhibit A, Defendant's Cross-Motion for Summary Judgment. Nothing in the divorce decree makes the defendant, Anthony Pittore, financially responsible for Mary Pittore's medical expenses. Indeed, the divorce decree specifically provides that the parties "shall each be solely responsible for his or her health insurance and health related insurance and that plaintiff may obtain COBRA health insurance coverage at her own expense; . . . " Exhibit A, Defendant's Cross-Motion for Summary Judgment. Toward this end, plaintiff has failed to establish that the divorce took place under circumstances in which the defendant husband would remain liable for necessaries or that the necessaries were furnished on the nondebtor spouse's credit. Furthermore, the plaintiff admits that the medical services rendered to defendant, Mary Pittore, occurred in 2009 - three (3) years after the parties divorced. Exhibit E, Plaintiff's Motion for Summary Judgment. The fact that Mary Pittore provided plaintiff with an illegitimate health insurance card with her name on it, does not make Anthony Pittore unwittingly liable.

THEREFORE, based upon all of the foregoing, it is now

ORDERED, that plaintiff's motion for summary judgment against both defendants is denied; and it is further [*5]

ORDERED, that defendant, Anthony Pittore's, cross-motion for summary judgment is granted; and plaintiff's complaint against defendant, Anthony Pittore, is hereby dismissed.

Dated: July ___, 2012___________________________

Poughkeepsie, New YorkKatherine A. Moloney

CITY COURT JUDGE

ENTERED thisday of July 2012________________________

JEAN JICHA, CHIEF CLERK

An appeal from this judgment must be taken no later than the earliest of the following dates: (I) thirty days after receipt in court of a copy of the judgment by the appealing party, (ii) thirty days after the personal delivery of a copy of the judgment by another party to the action to the appealing party (or by the appealing party to another party), or (iii) thirty-five days after the mailing of a copy of the judgment to the appealing party by the clerk of the court or by another party to the action.

Footnotes

Footnote 1: Defendant, Anthony Pittore never filed his answer with the Court, but said answer was filed by the plaintiff as part of its motion for summary judgment - Exhibit A.