St. Peter's Healthcare Servs. v Kamani

[*1] St. Peter's Healthcare Servs. v Kamani 2018 NY Slip Op 51444(U) Decided on July 27, 2018 Supreme Court, Albany County Weinstein, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 27, 2018
Supreme Court, Albany County

St. Peter's Healthcare Services, Plaintiff,

against

Ankit K. Kamani, Defendant.



7659-17



Overton, Russell, Doerr & Donovan, LLP

Attorneys for Plaintiff

By: Brian S. Strohl, Esq.

19 Executive Park Drive

Clifton Park, New York 12065

Ankit K. Kamani

Defendant Pro Se

4039 Chaucer Place

Slingerlands, New York 12159
David A. Weinstein, J.

This action was commenced by plaintiff St. Peter's Healthcare Services ("St. Peter's" or "the Hospital") against defendant Ankit Kamani by complaint verified by Lisa Berner, the Director of Central Billing office/revenue cycle for St. Peter's. The complaint alleges that defendant has refused to pay an outstanding bill for medical services provided to him on March 24, 2016 at Kamani's "express or implied request," which had a "reasonable value and agreed price" of $2,120 (Affidavit of Lisa Berner [Berner Aff], Ex B ¶ 3, 5). The complaint does not set forth any specific causes of action.

In a pro se answer verified and sworn by defendant, Kamani generally denies the allegations, states that he disputes the amount of the bill, and attests: "before when I asked, I was informed that [the] cost of service woul[d] be ~ $500" (id., Ex C).

The matter is now before me on a motion by plaintiff for summary judgment, supported by Berner's affidavit, which states as follows: the medical bill at issue resulted from a March 24, 2016 visit to St. Peter's Hospital at which plaintiff performed medical services [FN1] (Berner Aff ¶ 5). Berner states that the rates charged were based on plaintiff's "total operating expenses," include "no element of profit," and "are commensurate with the rates charged by other hospitals in the area for similar services" (id. ¶ 6).

According to the affidavit, the CT scan was billed to defendant's health insurance, but Kamani's deductible "was determined to be his responsibility" and so the full amount was directly billed to him (id. ¶ 7). As a result, plaintiff asserts that defendant now owes $2,120, and has refused to pay "any portion" thereof although "[p]laintiff has repeatedly requested payment" (id. ¶¶ 8, 9). Berner avers that plaintiff "sent numerous statements to Defendant before referring this debt to counsel's office for collections" (id. ¶ 14).

Berner appends various documents to her affidavit, including a "general consent for hospital services" signed by Kamani, in which he agreed to "pay charges" for the care and treatment rendered by St. Peter's that are "not covered by insurance" in "accordance with the service policies, rates and terms established by the Hospital" (Berner Aff, Ex A). She also attaches various internal printouts indicating that there was a $2,120 charge for Kamani's procedure.

Defendant has submitted an unsworn statement in response. In it he contends, along the lines of his answer, that he was told by a clerk prior to his procedure that the CT scan would cost about $500 out of pocket given his insurance, and he would not have undergone the procedure if he knew it would cost $2,120 (Kamani Response at 1, 2). He states that he investigated services at nearby imaging centers, and found they charged between $450 and $650 (id. at 1). Kamani also describes receiving a bill and then a call from a collection agency (id. at 2). Finally, he provides copies of correspondence sent after the commencement of this action, in which he offered to settle the case for a lesser amount, but the offer was rejected.

Discussion

To prevail on its motion for summary judgment, plaintiff must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Once this showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). The movant's evidence "must be viewed in the light most favorable to the nonmovant, affording the nonmovant every favorable inference" (Andrew R. Mancini Assoc., Inc. v. Mary Imogene Bassett Hosp., 80 AD3d 933, 935 [3d Dept 2011]).

Although St. Peter's does not spell out the specific cause of action that serves as the basis [*2]for its claim, it clearly sounds in breach of contract.[FN2] The contract in this case is the General Consent submitted with plaintiff's motion, under which defendant agreed to "pay charges" for his care. The Hospital alleges that it billed Kamani in accordance with his obligations under this agreement, and he failed to pay. As a general rule, evidence of a signed consent to pay a hospital for services rendered has been found to be a sufficient basis for a hospital to demonstrate its entitlement to summary judgment in an action to collect payment for such services (see Albany Med. Ctr. Hosp. v Armlin, 146 AD2d 866, 866 [3d Dept 1989]; Samaritan Hosp. v Chodikoff, 97 AD2d 937, 937 [3d Dept 1983]; Albany Med. Ctr. Hosp. v Purcell, 67 AD2d 761, 762 [3d Dept 1979]). I therefore find that such proof meets plaintiff's prima facie burden here.

As noted above, Kamani's opposition papers are unsworn and therefore cannot be considered in ruling on this motion (see Smrtic v Marshall, 176 AD2d 986, 986 [3d Dept 1991]; P.S. Griswold Co., Inc. v Cortland Glass Co., Inc. 138 AD2d 869, 871 [3d Dept 1988]). Nevertheless, "[a] verified pleading is the equivalent of a responsive affidavit for purposes of a motion for summary judgment" (see Hladczuk v Epstein, 98 AD2d 990, 990 [3d Dept 1983]). Thus, an issue of fact can be created by "specific factual allegations contained in a verified pleading," so long as they are not "so broad and conclusory as to have no evidentiary value" (Arcadian Painting & Decorating Corp. v Helmer Cronin Constr., 229 AD2d 896, 897 [3d Dept 1996] [citations omitted]). This is the case even where, as here, the papers submitted in opposition to the motion itself are not in proper evidentiary form (see Travis v Allstate Ins. Co., 280 AD2d 394, 394 [1st Dept 2001] [issue of fact created by verified answer, although only a memorandum of law was submitted in opposition to the summary judgment motion]). I find that defendant's assertion that he was told he would only need to pay about $500 for the procedure is sufficiently specific that it may be considered in ruling on the present application. The question before me is: does this assertion create a question of fact as to whether he breached the General Consent agreement.

This question calls into play the parol evidence rule, which bars consideration of "evidence of a prior or contemporaneous communication during negotiations of the agreement that contradicts, varies or explains a written agreement which is clear and unambiguous in its terms and expresses the parties' entire agreement and intentions" (Vivir of L I, Inc. v Ehrenkranz, 127 AD3d 962, 964 [2d Dept 2015] [citations omitted]). Such evidence may be admissible, however, to resolve an ambiguity in the contract (see Balkum v Marino, 299 NY 590, 592 [1949]; Calcagno v Roberts, 134 AD3d 1292, 1294 [3d Dept 2015]).

Although I am unable to find any precisely analogous caselaw, for several reasons, I find [*3]that in addressing this motion, I may consider defendant's sworn statement that he was told he would pay a price less than one fourth as much as he was ultimately billed. And this attestation suffices to create a question of material fact as to whether he has breached the contract because he refused to pay the $2,120 bill he received.

First, as noted, the agreement between the parties does not have any clear provision as to the cost of the procedure (cf. Rong Rong Jiang v Tan, 11 AD3d 373, 373-374 [1st Dept 2004] [parol evidence inadmissible to vary specific contractual price]). Rather, as noted, the General Consent provides that payment will be set according to the "service policies, rates and terms established by the Hospital" (see supra p. 2). But plaintiff's submission makes no reference to any policies, rates and terms used to calculate the amount owed in this instance; instead, it states that the price was reasonable and based on the Hospital's "total operating expenses." In short, it provides no evidence as to why the price was consistent with the parties' agreement except that plaintiff says so. Under these circumstances, and for purposes of this motion, I cannot find as a matter of law that the agreement was clear and unambiguous as to price, so that defendant's contention that a specific representation was made to him as to the cost of the procedure does not run afoul of the parol evidence rule (see R & W Jett v Futerman, 101 AD2d 1007, 1008 [4th Dept 1984] [parol evidence used to show purchase price when no price set in contract]).

Second, the contract contains no integration clause. To the contrary, while it says there have been no "guarantees or assurances" in regard to the results of treatment, it says nothing about other representations made in regard to pricing (see 37 E. 50th St. Corp. v Restaurant Group Mgt. Servs., L.L.C., 156 AD3d 569, 570-571 [1st Dept 2017] [parol evidence admissible when "agreement does not contain a merger/integration clause"]

Finally, this was not a case in which the contractual language was negotiated as part of an arm's length negotiation between sophisticated businesspeople (cf. Pavarini McGovern, LLC v Tag Ct. Sq., LLC, 62 AD3d 680, 680 [3d Dept 2009] [parole evidence must be excluded in "interpreting a commercial contract negotiated by and entered into at arm's length between sophisticated business people, represented by an attorney"] [citation omitted]). The present circumstances, where defendant is an unrepresented individual told that he needed a procedure for medical reasons, and the agreement is a standard form provided by a large institution, represents the nadir of the defendant's bargaining power.

In light of the foregoing, given the thin record before me, and drawing all inferences in defendant's favor as I must on this motion, I find that there are questions of fact as to whether representations were made to Kamani regarding the cost of the procedure; whether the circumstances allow a finder of fact to consider such representations as part of the parties' agreement; and whether as a result, defendant has not breached the contract by failing to pay the amount billed by plaintiff.[FN3]

Accordingly, plaintiff's motion is hereby denied. The parties shall appear at a conference before the Court on Friday, August 10, 2018 at 10:30 a.m. at Room 42, Albany County [*4]Courthouse at 16 Eagle Street, Albany, New York. Any request for an alternative date or time must be made in writing to the Court on or before August 7, 2018, with indication of alternative dates and times on which the party is available. The parties shall be prepared at the conference to set a schedule for further proceedings, and to discuss a possible resolution of this matter.

ENTER.

Dated: July 27, 2018

Albany, New York

_____________________________________

David A. Weinstein

Acting Supreme Court Justice

Papers Considered:

1. Plaintiff's Notice of Motion, dated February 14, 2018, Affidavit and annexed Exhibits; and

2. Defendant's response, dated June 15, 2018, with supporting papers.

Footnotes

Footnote 1:The affidavit does not state the nature of the service, but it appears from the billing record and defendant's submission to have been an abdominal CT scan (see Ex A at 1).

Footnote 2:Plaintiff's allegations could perhaps be read as setting forth a claim for "account stated." But such a cause of action requires proof that plaintiff sent defendant invoices that the latter received and retained for an unreasonable period of time without objecting to them, from which conduct an agreement to pay such invoices may be implied (see Haselton Lbr. Co., Inc. v Bette & Cring, LLC, 123 AD3d 1180, 1181 [3d Dept 2014]; Jim-Mar Corp. v Aquatic Constr., 195 AD2d 868, 869 [3d Dept 1993]). Nothing in the plaintiff's submissions indicates when any billings were sent, the length of time they were held, or that defendant did not object. To the contrary, on the latter point the Berner affidavit indicates that Kamani "refused to pay any portion" (Berner Aff ¶ 8). And no facts in this regard were set forth in the Hospital's pleading in any case. Such a cause of action therefore cannot be read into plaintiff's submissions.

Footnote 3:I note that defendant's unsworn statement raises a number of questions, including whether the representations he alleges were made to him concerned the amount the Hospital would charge, or the amount he would need to pay out-of-pocket after payment was obtained from his carrier. In light of the fact that these issues have not been raised by plaintiff, I need not address them in ruling on the present motion.