Henry M. Spinelli, M.D., P.C. v Ramirez-Rivera

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Henry M. Spinelli, M.D., P.C. v Ramirez-Rivera 2015 NY Slip Op 31679(U) September 1, 2015 Supreme Court, New York County Docket Number: 151783/12 Judge: Anil C. Singh Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK COUNTYi~OF NEW YORK: PART 45 -----------------------------------------------------------------)( II HENRY M. SPINELLI, M.D., P.C., DECISION AND ORDER Plaintiff, I Index No. -against- 151783/12 ROSA MMIREZ-RIVERA, I Defendant. -----------------------------------------------------------------)( II HON. ANIL C. SINGH, J.: Plaitiffmoves pursuant to CPLR 3212 for an order: a) awarding summary judgment lgainst defendant in the amount of $34, 15 7. 90, on an account stated theory basL on a bill for medical treatment provided by plaintiff; and 2) referring the matter ~o a Special Referee to determine the amount of attorneys' fees and costs owed pursuant to a lien agreement. Defendant opposes the motion. Plaitiff Henry M. Spinelli, M.D., is a surgeon who specializes in plastic i[ . . an d reconstruct1ve services. DefLdant Rosa Ramirez-Rivera fell down stairs in a restaurant, sustaining I mJunes. j I Defendant came to Dr. Spinelli seeking treatment. On January 14, 2009, Ms. RamirL-Rivera received a fee schedule quoting the costs of surgery in the I I I i Page I of 10 [* 2] ;1 amount of;!$48,000.00, which required a $10,000.00 deposit from the patient prior to the sur~~ry (Affirmation of S. Kyle Mersky, exhibit H). i That same day, defendant signed a "Financial Confirmation Sheet" that . .l . states m its entirety as ~! c 10 ll ows: TheJmedically necessary portion of your surgery is expected to total $48Jooo.oo. This amount will be billed to your insurance company for ¥imbursement. *(Fees may change ifprocedures are added based on rhedical necessity.) A deposit of $10,000.00, will be required to resetve the date you have chosen. Your deposit will be applied to the cost~[of the procedure however it does not satisfy your entire financial obligation. Your deposit does not substitute for full payment. AnJ./ insurance payments made directly to you should be endorsed and for«rarded to the office until the entire fee is paid. Please note, once the dlaim is processed, you may be responsible for a balance dep~nding on the reimbursement made by your insurance company 'l and your policy's benefit. :I I understand that this deposit may not be my total financial 1 resp bnsibility and that there is a difference between the deposit and the tbtal cost of the procedure. I, the undersigned, acknowledge resphnsibility for the payment of all services including the balance not ~overed by my insurance company and any additional surgery not ·I listeo, *which is determined to be medically necessary at the time of youP. treatment. I agree to endorse any insurance payments made dire~tly to me and forward them to this office until the entire outs'tanding account has been satisfied. I hat read and understand the above financial agreement, and have beerl given the opportunity to ask questions regarding my financial .I obligations. I hat read the above information; I understand it and I agree to it. Page 2 of 10 [* 3] I I (Affirmati~n of S. Kyle Mersky, exhibit I (italics and emphasis in original)). I ( Wht Dr. Spinelli performed the surgery, he determined that further procedurJ were needed and the total cost of the surgery billed to defendant was II $55,000.0~. II Of that $55,000.00, defendant's insurance company paid $13,020.10, leaving an1amount due of $32,029.90 for the surgery. I On rarch 11, 2009, defendant underwent a second surgical procedure. For this surgeJy, plaintiff charged $7,750.00, of which he received $1,875.00 from defendant 1Ld $4,616.00 from defendant's insurance company. Plaitiff alleges that, for all the bills submitted to defendant's insurance company, llaintiffs office appealed the amount paid by defendant's insurance company ld diligently attempted to retrieve as much as possible before seeking reimburselent from defendant. Further, plaintiff alleges that after rendering all medical tJatment and attempting to recover as much as possible from the insurance Lmpany, there was still an outstanding balance in the amount of II $34,157.90. Plaiti ff exhibits a letter dated April 21, 2009, addressed to defendant (Motion, elhibit E). The letter states in its entirety as follows: I I I I ! I I :~ i Page 3 of 10 [* 4] I I ! I I ho! e this letter finds you and your family well. As you know your insubnce company has made payment for your surgical procedures. II . .. . H o'rever, t here is a remammg bl ance on your account. Be low is a a bre~kdown of your financial responsibility. Dat~ I~ 1/13 09 1120/09 ·~ 3/5/09 3/1 i!109 411109 I Billed to Patient Insurance Balance doe to Insurance Payment Payment Dr. Spinelli $1250.00 $55,050.00 $200.00 $7,750.00 $9,900.00 $45.00 $13,020.10 $36.00 $4,616.00 Pending $705.00 $32,029.90** $164.00 $1,259.00 Pending $500.00 $10,000.00 $0 $1,875.00 $0 II Total Balance Due. $34,157.90 i **Please note, I have submitted an appeal for additional rei~bursement from your insurance company, which is still pending. ThJefore, please forward a check in the amount of $34, 157 .90, made pay~ble to Dr. Henry M. Spinelli, MD, PC. If yt have any questions regarding this matter, please do not hesitate ll to contact me d"irect1 y. Sin'llrely, Dena Salerno Bmi!ng Manager (Motion, Jhibit E). Pla1tiff exhibits the deposition transcript of Dena Salerno (Motion, exhibit ~ J). Ms. Salerno stated that she generated the above letter. In liL ofreceiving full payment immediately, plaintiff placed a lien on a ! ' II i Page 4 of 10 ' [* 5] personal irljury lawsuit that Ms. Ramirez-Rivera commenced for the injuries sustained il I the underlying slip-and-fall accident. Plaintiff exhibits a copy of lien agreement' entitled "Assignment of Recovery Proceeds and Authorization for 1 Payment o f Health Services Provider's Fees By My Attorney," which states in . pertment l lf I rt: I attest to my full awareness that I shall be financially responsible for Henty M. Spinelli, M.D., P.C. 's bill in the event I do not win my law~uit along with all legal expenses incurred in the collection of my bill"I (Affirmation of S. Kyle Mersky, exhibit K). Thellssignment agreement was signed by Ms. Ramirez-Rivera. i . . . . y, r. Su b ~equent1 d e1en d ant ' s persona1 mJury Iawsmt was d.ism1sse d . Plai~tiff commenced the instant action by filing a summons an.d verified complaint ~n April 12, 2012. The complaint alleges a cause of action for: 1) ·! breach of ~,ontract; and 2) an account stated . .i 1 Discussiort The :ltandards for summary judgment are well settled. "The proponent of a summary jLgment motion must make a prima facie showing of entitlement to . II . . . JU d gment as a matter o f 1aw, ten d ermg su ffiic1ent ev1'd ence toe l'immate any material isLes of fact from the case" (Winegrad v. New York University Medical ,, ti E!. ~!,, ;~ I Page 5 of 10 [* 6] ! Center, 64;N.Y.2d 851, 853 [1985]). Despite the sufficiency of the opposing I ' ! papers, th, failure to make such a showing requires denial of the motion (See Id.) Summary judgment is a drastic remedy and should only be granted if the moving ! party has ~~fficiently established that it is warranted as a matter of law (See Alvarez jPropect Hosp., 68 N.Y.2d 320, 324 [1986]). Moreover, summary ., judgment iotions should be denied if the opposing party presents admissible ![ . . . . . ev1'd ence e~ta bl'is h'mg th at th ere is a genume issue o ff:act remammg (S ee ZuckennJ v. City of New York, 49 N.Y.2d 557, 560 [1980]). "In determining 'I whether s~mmary judgment is appropriate, the motion court should draw all I reasonabl~ inferences in favor of the nonmoving party and should not pass on i issues of cfedibility" (Garcia v. J.C. Duggan. Inc., 180 A.D.2d 579, 580 [1st Dept., 1992], cit1g Assaf v. Ropog Cab Corp., 153 A.D.2d 520, 521 [l" Dept., 1989]). I I The court'~ role is "issue-finding, rather than issue-determination" (Sillman v. Twentiethbentury-Fox Film Corp., 3 N.Y.2d 395, 404 [1957] (internal quotations I I omitted))., Ret~ntion of bills without objection or partial payment may give rise to an account silted (Morrison Cohen Sineger & Weinstein, LLP v. Waters, 13 A.D.3d IJ I 51, 52 [1st Dept., 2004]). "Where an account is rendered showing a balance, the party recei!~ing it must, within a reasonable time, examine it and object, if he Page 6 of 10 [* 7] I· ! l ! disputes it~ correctness." (Shaw v. Silver, 95 A.D.3d 416, 416 [1 51 Dept., 2012]). ! ~ "If he omi~s to do so, he will be deemed by his silence to have acquiesced, and will ·.I be bound by it as an account stated, unless fraud, mistake or other equitable :I considerations are shown" (id.). Plaltiff exhibits the transcript of the deposition of the defendant that took place on dctober 20, 2014 (Motion, exhibit F). Defendant testified as follows: Q. I~ going to show you the document that has been marked as defendant's exhirit D dated December 2, 2013. I Hav;f you ever seen this document before today? 11 A. YesJ•! i Q. And~that document was mailed to you? ,, ' A. Yes~r Q. Anjthat document lists various instruments charges? A. YeJ Q. For Lsits with Dr. Spinelli? A. Um) it doesn't explain what it is, but there is charges on there. Q. Do the dates that are listed correspond with office visits and surgeries you ! had A. ~ith Dr. Spinelli? Yes! if 'j 'i I '· Page 7 of 10 [* 8] ' Prio'r to your personal injury lawsuit being dismissed, did you dispute any of Q. ' charges with Dr. Spinelli 's office? I thes~ i I No. 1 A. ! Tilthis day, have you disputed any of these charges with Dr. Spinelli's Q. office? I ! No.I A. (Depositiop Transcript of Rosa Ramirez-Rivera, dated October 20, 2014, pp. 281:· I 29). I The'. Court finds that plaintiff has made out a prima facie case in his favor on the cause ?if action alleging an account stated based upon the verified complaint, verified bip of particulars, the deposition testimony of Dena Salerno and the ) I defendant,!' and the documentary evidence. In the instant matter, plaintiffs bill was retained Jfithout any objection or protest for a sufficient length of time to establish : ~ ' defendant is liability on the account stated cause of action (Rothstein & Hoffman Electric S~rvice. Inc. v. Gong Park Realty Corp., 37 A.D.3d 206, 207 [1st Dept., I 2007]). Def~ndant's opposition to summary judgment, consisting of no more than I I the unsub~tantiated affirmation of counsel, who lacks personal knowledge of the facts, is inLfficient to raise a triable issue (Gruppo v. London, 25 A.D.3d 486, i Page 8 of 10 [* 9] . :> ' I I I 487 [1st D~pt., 2006]). Deflndant's contention that the values at which plaintiff priced the medical I services wbre inaccurate or unreasonable is meritless. By retaining a billing ·1· . ma reasona bl e time, t h e . statement ian d f:ai mg too b. ~ect tot h e account wit h' recipient amount Jr the bill implies that he or she agrees with the sender regarding the oled .·1 (BRK Properties. Inc. v. Wagner Ziv Plumbing & Heating Corp., 89 ' A.D.3d 886, 884 [2d Dept., 2011]; Mintz & Gold LLP v. Daibes, 125 A.D.3d 488, 490 [l" olpt., 2015]). i ! The' branch of the motion seeking a determination of the reasonable I ' is granted~ince defendant failed to address that branch of the motion in the attorneys' jfees owed by the defendant based on the provision in the lien agreement I . . :I oppos1t10n papers. JI · · A ccprd.mg ly, it is ,, .i ORDERED that the motion for summary judgment on the complaint herein is grantedJ and the Clerk is directed to enter judgment in favor of plaintiff and !I against defendant in the amount of $34, 157 .90, together with interest from April 21, 2009, t the statutory rate until entry of judgment, as calculated by the Clerk, I together lith costs and disbursements as taxed by the Clerk, together with reasonabl~ attorneys' fees; and it is further Page 9 of 10 ,, i! ; . [* 10] I ' I ORIDERED that a Judicial Hearing Officer ("JHO") or Special Referee shall be designJtd to hear and report to this Court on the issue of the amount of reasonabJ attorneys' fees to be awarded plaintiff; and it is further l ORIDERED that the matter is hereby referred to the Special Referee Clerk !I (Room 119M) for placement at the earliest possible date upon the calendar of the Special RJferees Part, which shall assign this matter to an available JHO/Special lid.• C R eieree; an it is fu rther il ORDERED that counsel shall immediately consult one another and counsel 1[ for plaintiff shall, within 15 days from the date of this Order, submit to the Special 11 Referee C~erk an Information Sheet containing all the information called for :Id· · · c: therem; an it is 1urther ;1 OiiERED that any motion to confirm or disaffirm the Report of the JHO/Specjlal Referee shall be made within the time and in the manner specified in CPLR 4403 and Section 202.44 of the Uniform Rules of the Trial Court. The: foregoing constitutes the decision and order of the court. I Date: Sep~ember 1, 2015 New: York, New York Anil C. Singh Page 10 of 10

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