Orthopedic Spine Care of Long Island, P.C. v. J.I., et al, No. 2:2009cv02757 - Document 22 (E.D.N.Y. 2011)
Court Description: 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)
Download PDF
<![CDATA[
Orthopedic Spine Care of Long Island, P.C. v. J.I., et al Doc. 22 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 judgment; for the following reasons, the motion is GRANTED. Dockets.Justia.com 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’ (Id. at ¶ 17.) claims directly to the Defendants. that money, however, was not forwarded to Plaintiff. for the services rendered, Plaintiff received the Most of Instead, 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
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
