Corizon Health, Inc. v New York City Health & Hosps. Corp.

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Corizon Health, Inc. v New York City Health & Hosps. Corp. 2019 NY Slip Op 32029(U) July 12, 2019 Supreme Court, New York County Docket Number: 652710/2018 Judge: O. Peter Sherwood Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 07/15/2019 10:57 AM NYSCEF DOC. NO. 43 INDEX NO. 652710/2018 RECEIVED NYSCEF: 07/15/2019 SlJPREME COURT OF THE STATE OF NEW YORK COUNTY OF NE\V YORK: COMMERCIAL DIVISION PART 49 -------------------------------------------X CORIZON HEALTH, INC., DECISION AND ORDER Index No.: 652710/2018 Plaintiff, -against- Motion Sequence No.; 00 l NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Defendant. ------------------------------------------X O. PETER SHERWOOD, .J.: I. FACTS As this is a motion tu dismiss, the following facts arc taken from the amended complaint. which was filed after the motion to dismiss (Complaint, NYSCEF Doc. No. 19). Defendant opted to apply the motion to the amended complaint. Plaintiff Corizon J lealth, Inc. (Corizon) and its associated clinical professional corporations contracted with the New York City Department of Health and Mental Hygiene (DOHMH) lo provide medical, dental, and related services to the NYC Dept. of C01Tcction (DOC) on Rikcrs Island and at other facilities for 2013-15 (Corizon's predecessor, PHS. had entered into similar agreements previously. for similar services). The Agreement provided for DOHMH to pay the actual costs of the services plus a fixed administrative fee. Actual costs included union pension expenses, which includes pension withdrawal liability (the statutory obligation for an employer to pay a share oft he plan's unfunded vested benefits if the employer withdraws from a defined benefit multi-employer pension plan). As the Agreement required Corizon to hire incumbent union healthcare \vorkcrs at Rikers Island, Corizon entered into the required collective bargaining agreement. which required Corizon tu contribute to the unions' multi-employer pension plans and meant Corizon '-'Vould al'.crue pension withdrawal liability, when it stopped providing the services. In July 2015, DOHMH told Corizon it would not enter into a new contract alter the end of the term of the Agreement. DOI IMH wanted the New York City I lealth and Hospitals Corporation (Hl IC) lo be the ne\v provider and assigned the Agreement to HJ fC as of August 9. 2015. As assignee, f II IC became rcsponsihle for DOHMH's obligations to Corizon. including reimbursing Corizon for withdrawal liability. The New York State Nurses Association Pension 1 2 of 11 [*FILED: 2] NEW YORK COUNTY CLERK 07/15/2019 10:57 AM NYSCEF DOC. NO. 43 INDEX NO. 652710/2018 RECEIVED NYSCEF: 07/15/2019 Plan has assessed over $5 million in withdrawal liability against Corizon. Corizon has paid over $1.7 million. 1IHC has rejected Corizon's claim tl1r reimbursement HHC arranged for Physician Affiliate Group of New York. PC (PAGNY) its clinical services provider. to purchase certain Corizon assets (Complaint, 14-15 ). The transfer was made in accordance \vith ER.ISA. section 4204, which "provides that withdrawal liability is not triggered when a successor company omploys incumbent employees who remain in the same pension plan if the successor also purchases assets from the predecessor company" (id at 15). The 1199 Union pension plan withdrawal liability was transferred to PAGNY. and no liability was triggered assessed at that time (id.). l)f HHC and PAGNY did not use the same structure for the nurses. PAGNY did not want to recognize the Nev. York State Nurses Association (NYSNA) union. so the nurses were hired by JIHC, which already had a NYSNA bargaining unit with a different pension. As PAONY would not be taking over Corizon's relationship with the NYSNA pension plan, withdrawal liability was triggered (id.). The total withdrawal liability plus fee is estimated to he over $10.7 million. Corizon asserts claims for: I} Breach of Contract- for failure to reimburse Corizon for the actual costs of contract services, which include the union pension withdrawal liability: 2) Declaratory Judgment- the 1IHC is responsible under the Contract for to pay the withdrawal liability to the NYSNA Pension Plan and outstanding. 3) Unjust Enrichment- HHC is using the NYSNA nurses whose benefit costs have been paid by Corizon to date. JI. ARGlJMENTS A. Lack of Subject Matter Jurisdiction 1IHC argues in support of dismissal that the Contract has a mandatory dispute resolution procedure \vid1 which plaintiff has not complied. It contends, as plaintiff has not exhausted its administrative remedies, the suit should be dismissed. Appendix A of the Contract provides that ·'Except as provided ... , all dispulcs between the City and the Contractor that arise under, or bv virtue ot: this Agreement shall be finally resolved in accordance with the provisions of this Section and PPB Ruic§ 4-09. This procedure shall be the exclusive means of resolving any such disputes" (attached as Exhibit A to the original complaint, NYSCEF Dol:. No. 2, § 12.03 ). The section continues that the Contractor shall present its dispute in writing to the agency head within 30 days of written notice of the detennination which is the subject of the dispute (unless a time limit is 2 3 of 11 [*FILED: 3] NEW YORK COUNTY CLERK 07/15/2019 10:57 AM NYSCEF DOC. NO. 43 INDEX NO. 652710/2018 RECEIVED NYSCEF: 07/15/2019 otherwise specified). That section then lays out a process for the agency head to make a decision. and provides that the decision is final, unless the decision is brought lo the Comptroller and then to the Contract Dispute Resolution Board by the Contractor (id.). I lHC contends plaintiff failed to submit a notice of dispute, and that HHC was not required to instruct or aid Corizon in navigating this process. HHC argues that Corizon was informed of HIIC's rcfus;.11 to reimburse Corizon hy email on Febrnary 13. 2017. and Corizon·s attorney sent his email to Salvatore Russo (general counsel of HHC) on April 10. 2017, about a month late. HI IC also argues the email would not have qualified as a proper notice of a dispute as the email did not "'set forth the facts ... on which Corizon relies·· (Reply at 3. citing Agreement Appendix A, § 12.03fDJl11 ). Nor does the large amount of money at stake excuse compliance with the contractual dispute resolution process. In the case relied upon by plaintiff, the court excused the plaintiffs failure to provide a wrified stakmcnt, since the unverified statements had included sullicient detail. it would be a disproportionate forfeiture, the requirement was not material, "noncompliance [was I de minimum and ddendanl !had] shO\vn no prejudice whatsoever'' (Danco Elec. Contractors, Inc. v Dormitory Auth. ofStale, 162 AD3d 412, 413 [1st Dept 20181). As far as plaintiff claims HHC was not subject to the dispute resolution process set out in the Agreement. defendant contends that DOHM! I assigned the Agreement to 11 HC. and therefore I IHC stepped into DOI IMH's shoes, including with regard to the dispute resolution protocol {Reply at 5). Nor vvas l'.'Lll11pliancc impossible. The head of HJIC would qualify as an Agency I lead under the Agreement. Nor did plaintiff unsuccessfully attempt lo identify or notify the Agency Head of Ill IC. Moreover, Corizon did not notify the Comptroller. As far as Corizon argues that the Comptroller could not act, that failure would allmved Corizon to petition for further review. pursuant to the Agreement (id. at 7-8). Plaintiff argues that the restrictions and administrative remedies in the Agreement do not apply. as plaintiff is not suing a City agency (Opp at 23). Plaintiff points out that the dispute resolution pro1:edure set out in the Agreement (Appendix A § l 2.03[Al and PPBR § 4-09 19 NYCRR § 4-09]) applies to "disputes between the City and the Contractor.'' As HHC is not an agency of the City. but instead a public benefit corporalion, the plaintiff argues the procedure in the Agreement docs not apply to HHC. Further, HI IC docs not have an agency head, and the comptroller does not handle HI !Cs disputes. Accordingly, compliance with the dispute resolution procedure has hcen rendered legally impossible. 3 4 of 11 [*FILED: 4] NEW YORK COUNTY CLERK 07/15/2019 10:57 AM NYSCEF DOC. NO. 43 INDEX NO. 652710/2018 RECEIVED NYSCEF: 07/15/2019 While HHC argues it stepped into the City's shoes because of the assignment, the process simply cannot apply. The Comptroller has no authority over HHC. and there is no Agency Head fiJr I IHC. Then:fore, Corizon could not have complied with the specified procedure. further. ir Corizon was required to notify I IHC of its claim, it did so, via a litigation lcller reserving rights after HI IC rejected Corizon·s claim. HI IC did not examine the claim or make a forn1al determination as per the specified process (Opp at 23-24). Additionally. Corizon did notify HHC or its dispute or I IHC's rejection of Corizon's reimbursement request within thirty (30) days of receiving the rejection and sought a meeting. which I IHC denied. I IHC did not direct Corizon to the dispute resolution procedure which it is now asserting to be the proper procedure. While there is a special dispute resolution process for I IHC. that is only for certain torts, which arc not at issue here. B. Withdrawal Liability is not Reimbursable under the Contract Defendants also contend the Agreement is not ambiguous and docs not require reimbursement for withdrawal liability, The Agreement provides for reimbursement ofthe "actual costs of the contract services required." which cannot be reasonably interpreted lo include \vithdrawal liability. Corizon admits it had a collective bargaining agreement with NYSNA dating back to 2008 (see letter from NY SN A Pension Plan dated December 16. 2016, attached as Exhibit D to Complaint, NYSCEF Doc. No. 23 at 5 [showing 2008 contributions I). Accordingly, Corizon faced potential withdrawal liability before entering into the Agreement and that expense cannot be considered a cost of the contract services (Reply al 9). Nor is the withdrawal liability an expense that "accrued over time" (id at I 0). Courts have determined withdrawal liabilities to accrue on withdrawal from the pension plan (id., citing CenTm. Inc. v Cent. States. Southeast ,Jnd S'oulhwest Areas Pension Fund, 578 F3d 592, 604 17th Cir 2009]). The liability is not an actual cost of required services as a ·'true up'" of contributions, as argued by Corizon, because the pension plan was underfunded. Liability would have accrued unless NYSNA Pension Plan had gotten all participating employers to make additional contributions to folly fund the pension plan, which is an utterly speculative possibility (Reply at 11 ). The reimbursement obligations for "personnel services"' and '·fringe benefits'· also do not apply to \Vithdrcnval liability as that liability is not a cost of services provided and did not accrue until Cori:ron stopped providing services (id.). As far as the budget for the Agreement was amended. the additions to the budget cover spcci lie costs, and the withdrawal liability docs not fit into those categories (id. at 12). Since the Agreement is 4 5 of 11 [*FILED: 5] NEW YORK COUNTY CLERK 07/15/2019 10:57 AM NYSCEF DOC. NO. 43 INDEX NO. 652710/2018 RECEIVED NYSCEF: 07/15/2019 not ambiguous, extrinsic allegations regarding the parties' course of conducl. expectations. and understanding are irrelevant (id). Corizon contends the withdrawal liability was an actual cost under the Agreement (Opp at I 0). As a result of the Agreement, Corizon was required to enter into a relationship with NYSNA and to contribute to the NYSNA retirement plan (id.). Based on this required relationship. if a shortfall appeared in the NYSNA plan, Corizon would be required to make an additional payment. Under the Agreement "actual costs" fall into three categories: ''personnel services," ''fringe benefits ... and '"other than personnel services" (id. al 10). The Agreement does not define any of those terms. All payments to the NYSNA plan are covered as ··fringe benefits'' (id.) DOHMA and I IHC reimbursed Corizon ror payments to the NYSNA plan over the years. Also, Corizon argues the withdrawal liability accrued over time, although it was only assessed when Corizon stopped paying in to the retirement plan (id.). The withdrawal liability covers un<lerfun<led pension obligations incurred during Corizon's relationship with the plan. \Vhilc Corizon contributed the proper amounts, the pension plan was underfunded, resulting in this liability. IrNYSNA had required Corizon to make additional contributions over time, those vvould have been reimbursable under the Agreement (id at 11 ). The NY SN A plan incorrectly predicted or calculated \\'hat Corizon's contribution should be, and the withdrawal liability represents a "true up'" of Corizon 's oh ligation from that period (id). The with<lrmval liability is reimbursable as either "personnel services" or .. fringe bcnetits."' According to NY l .abor I ,aw sections 190 and 198-c, ·'wages'' include "wage supplements" such as retirement benefits (id at 11 ). The \Vithdrawal liability is a payment into the retirement plan, '\vhich is lhcrefrffc part of wages, and thus "personnel services"' under the Agreement (id.). The withdrawal liability is also part of "fringe benefits" reimbursable under the Agreement (id. at 12). Corizon provided some fringe benefits directly to the nurses, such as vacation time and severance. Contributions to the retirement plan were also a fringe benefit (although not paid directly by the employer). to be colkcted hy the nurses later. Notably, contributions made during the term of the Agreement were reimbursed (id). Reimbursement for the withdrawal liability is appropriate, and there was room in the budget. As far as HTIC argues that withdrawal liability is a cost of ceasing to provide services ( ~vfemo at l 1), rather than a cost of providing those services, the case relied upon by defendant is distinguishable (Ccmral S'tales. Southeast and Southwesl Areas Pension Fund v International s 6 of 11 [*FILED: 6] NEW YORK COUNTY CLERK 07/15/2019 10:57 AM NYSCEF DOC. NO. 43 INDEX NO. 652710/2018 RECEIVED NYSCEF: 07/15/2019 Comf'orl Products. /J.C. 2008 WL 8448356 [MD Tenn]). Thal court, on summary judgment, noted that as the contract \Nas silent on the issue of withdrawal liability. as the contract term requiring reimbursement of costs terminated when operations did. and as the parties had not contemplated withdrawal liability. withdrawal liability was not reimbursable there (Opp at 17, Central States at *4. ["The t\vo limiting phrases "of operations·· and "applicable to operations" indicates that. once the contract terminates and operations ... cease, this language no longer obligates [defendant] to reimburse [plaintiff] for any operational costs or any other costs, including reimbursements for pension contributions on behalf of ... drivers"]). A Michigan court, looking at a similar set of facts and a different contract. came to a different conclusion, declining to fi.>llow the foderal case law finding ·'withdrawal liability does arise under the MPPAA [Multicmployer Pension Plan Amendments Act] until the time of actual withdrawal from the pension fund" and instead considering the case UJH.kr contract law (Triple E Produce Corp. v Mastronardi Produce. Ltd, 209 Mich App 165, 174 I Mich Ct App 1995]). The Court of Appeals of Michigan, considering the totality of the circumstances, decided the lower court had not erred in ruling the plaintiffs were entitled to indemnification (id. at 174-75 ). In this Agreement, the categories are broad and vague. and cover the \vithdrawal liability. The liability accrued during the tenn of the Agret:mcnt, even though the amount was not hilled during that term (Opp at 18). Fu1thcr, HHC paid for severance costs which did not accrue until aller the term of the Agreement (id. at 18-19). The Agreement contemplated that certain reimbursable expenses might be incurred after the termination of the agreement, providing that. in the event the City terminated the Agreement, '"any obligation necessarily incurred by the Contractor on account of this Agreement prior to receipt of notice of termination and falling due alter the termination date shall be paid by the City in accordance with the terms of this Agreement"" (Agreement l\ppcndix A. § l 0.01 ). To the extent both sides' interpretations of the Agreement are plausible, the Agreement is ambiguous, and issues of fact exist about the parties' intentions. C. Declaratory Judgment Claim As lo the declaratory judgment claim plaintiff argues it is not duplicative of the breach of contract claim because the breach of contract claim seeks to recover payments made on the withdrawal liability to date. The declaratory judgment claim seeks to clarify the parties· responsibility for future withdrawal liability payments. Jn their reply, defendant abandons this 6 7 of 11 [*FILED: 7] NEW YORK COUNTY CLERK 07/15/2019 10:57 AM INDEX NO. 652710/2018 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 07/15/2019 objection and seeks to dismiss the declaratory judgment claim only on the same grounds as the breach of contract claim. D. Unjust Enrichment Claim As to Corizon's unjust enrichment claim, HHC argues it fails as a matter of law because the parties hav1: no rdationship outside the Agreement and the Agreement contains all terms defining their relationship, so the claim docs not arise outside of the Agreement (Reply at 13). The validity of the Agreement is not disputed (id. at 14). rurther, even if the claim were not precluded, the allegations by Corizon do not include any benefit to HHC bestowed by Corizon. As for as Corizon claims its payment of the withdrawal liability defrays HHCs benefit costs, that is refuted by Corizon' s other allegations, including that the nurses who worked fi.)r Corizon became members of a different retirement plan, and so cannot be bcnefitting from Corizon·s payment of the withdrawal liability (id at 14-15). Plaintiff argues that this is pied in the alternative and claims HHC has appreciated the benefit of employing the nursing staff without having to fund a portion of their pension plan (Opp at 21 ). Corizon was lcti to make these payments hecause HHC chose to structure its transaction in a particular \vay. HHC could have had PAGNY employ the nurses and make the contributions, hut because PAUN Y refused to recognize the NYSNA union. the deal \Vas structured leaving Corizon \Vith this liability. Ill. DISCUSSION A. Standards To succeed on a motion to dismiss pursuant to CPLR *3211 (a} (I). the documentary evidence submitted that forms the basis of a defonse must resolve all factual issues and definitively dispose of the plaintiffs claims (see, 511 W. 232"J Owners Corp. v .Jenn(fer Realty Co .. 98 NY2d 144, 152 12002]: Blonder & Co .. Inc. v Citibank. N.A .. 28 AD3d 180, 182 psi Dept 20061). A motion to dismiss pursuant to CPLR § 3211 (a) (1) "may be appropriately granted only where the documentary evidetKe utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Mc( 'ul~v v. Jersey Partners. Inc., 60 J\D3d 562, 562 [ t Dept. 2009]). 51 The fads as alleged in the complaint are regarded as true, and the plaintiff is afforded the henetit of every favorable inference (see Leon v Martinez. 84 NY2d 83, 87-88 [1994]). Allegations consisting of bare legal com:lusions as well as factual claims flatly contradicted hy documentary 7 8 of 11 [*FILED: 8] NEW YORK COUNTY CLERK 07/15/2019 10:57 AM NYSCEF DOC. NO. 43 INDEX NO. 652710/2018 RECEIVED NYSCEF: 07/15/2019 evidence arc not entitled to any such consideration (see e.g /\lisari v Ramjoh11. 85 AD3d 987, 989 [2nd Dept 20 I I I). CPLR ~ 3211 (a) ( 1) docs not explicitly define ·'documentary evidence." As used in this statutory provision, ·'·documentary evidence' is a· fuzzy term', and what is documentary evidence for one purpose. might not be documentary evidence for another" (Fontanella v .John Doe I, 73 AD3d 78, 84 j2nd Dept 201 O]). ''[T]o be considered 'docurnentary. • evidence must be unambiguous and of undisputed authenticity'' Ud. at 86, citing Siegel, Practice Comn11::ntarics, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 3211: 10. at 21-22). Typically that means ··judicial records, as wdl as documents retkcting out-of-court transactions such as mortgages, deeds, contracts, and any other papers. the contents of which arc 'essentially undeniable.' " (id. at 84-85). On a motion to dismiss a plaintiff's claim pursuant to CPLR ~ 3211 (a) (7) for failure to state a cause of action, the cowi is not called upon to determine the truth of the allegations (see. Campaign _fi>r Fiscal l•.:quity I' State. 86 NY2d 307, 317 11995]: 219 /Jroadwt~v C'orp. v Alexander ·s. Inc .. 46 NY2d 506, 509 [ 19791). Rather . the court is m.1uircd to ''atford the pleadings a liberal construction . take the allegations of the complaint as true and provide plaintiff the henefit of every possihle inference fcitation omitted]. Whether a plaintiff can ultimately estahlish its allegations is not part of the calculus in dete1mining a motion to dismiss'' (f.BC ! v Goldman, Sachs & Co .. 5 NY3d 11, 19 [20051). The court's role is limited to determining whether the pleading slates a cause nf action, not whether there is evidentiary support to establish a meritorious cause of m:tion (sel.' Guggenheimer I' G;nzhurg, 43 NY2d 268. 275 [ 1977]; Sokol v Leader. 74 AD3d 1180 [2d Dept 201 O] ). B. Claims 1 and 2- Breach of Contract and Declarato11' Judgment "The fundamental rule of contract interpretation is that agreements are construed in accord with the parties' intent ... and 'ltlhe best evidence of what parties to a written agreement intend is what they say in their writing' .... Thus, a written agreement that is clear and unambiguous on its face must be cnfixced according to the plain terms, and extrinsic evidence of the parties' intent may be considered only if the agreement is ambiguous [internal citations omittedl" (River.~'idc 1 S'outh PlanninK Corp. v CRP/E-.:tell Rii-erside U'. 60 AD3<l 61, 66l1' Dept 2008]. afld 13 NY3d 398 f2009]). Whether a contract is amhiguous presents a question of law for resolution by the i.:ourts Ud. at 6 7). 8 9 of 11 [*FILED: 9] NEW YORK COUNTY CLERK 07/15/2019 10:57 AM NYSCEF DOC. NO. 43 INDEX NO. 652710/2018 RECEIVED NYSCEF: 07/15/2019 In accordance with these principles, a court should interpret a contract ··so as lo give full meaning and effect to the rnaterial provisions" (Beal Savings Bank v Somma, 8 NY 3d 318, 324 [20071, quoting !:\Tes.\· Ins. Co. Ud v factory Mui. Ins. Co., 3 NY3d 577, 582 [2004.1). "A reading of a contract should not render any portion meaningless .... Further, a contract should he read as a whole. and e\cry par1 will he interpreted \.vith reference to the whole; and if possible it will be so interpreted as to give effect lo its general purpose" (id. at 324-325, quoting lV!aller of l+"estmoreland Coal Co. l' En1ech. Inc.. 100 NY2d 352, 358 [2003]). First, defendant argues this court lacks jurisdiction, as the plaintiff failed to follow the dispute resolution procedures. The Agreement provides for dispute resolution procedures bet\vecn Corizon and the City of New York, but they do not apply to HllC. Nor docs HIIC have the equivalent people or roles to those listed in the Agreement(§ 12.03). The Agreement does not. by itsdC refute the claims alleged. As to the question of whether the Agreement requires HI IC to reimburse Corizon for the withdrawal liability. Nev. · York State courts do not provide a direct answer. The cases suhmittcd by HHC are distinguishable and, in any event, are not hinding on this court. The agreement in Centrul States had different language. cutting off the obligation to make reimbursements when the contract terminated (2008 WL 8448356 frv1D Tenn]['The two limiting phrases ~-of operations" and ·'applicable to operations" indicates that, once the contract terminates and operations between the ICP and Top cease. this language no longer obligates ICP to reimburse Top for any operational costs or any other costs"]). Defendant also provides other federal case in which the courts hold that withdrmval liability accrues when the withdrawal occurs. not when the union member does the work (see Memo al l 0). The language orthe Agreement is broad and vague, but it is clear and undisputed "Fringe Benefits"' (including contributions to the pension, when made during the terms of the Agreement) are reimbursable. The documentary evidence provided does not directly refute Corizon 's claims, which should stand. C. lJnjust Enrichment Corizon argues, in the alternative, that I IHC is unjustly enriched by using the services of the NYSNA-affiliatcd staff while Corizon pays the NYSNA pension plan expenses, via the withdrav.al liability. "Unjust enrichment is a quasi contract theory of recovery. and 'is an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties 9 10 of 11 [*FILED: 10] NEW YORK COUNTY CLERK 07/15/2019 10:57 AM INDEX NO. 652710/2018 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 07/15/2019 1 concerned"' (Georgia Malone & Co .. Im:. v Rieder, 86 AD3d 406, 408 (ls Dept 2011 J, qffd. 19 NY3d 511 (2012 I, quoting !/)'/' C'm7J. v Morgan Stanley Dean I-filler & Co., 12 NY3d 132, 142 f2009]). In order to plead a claim for unjust enrichment, the plaintiff must allege '·that the other patiy was enriched, at plaintiffs expense, and that 'it is against equity and good conscience to permit [the other party! to retain what is sought to be recovered"' (Georgia Malone & Co .. 86 AD3d at 408. quoting Mandarin Trading ltd v fVildenslein. 16 NY3d 173, I 82 [2011] ). Plaintiff docs not allege that the nurses would not be available to HHC if Corizon did not pay the withdrawal liability. Nor does Corizon argue HI-JC would have to pay for the liability if Corizon did not. Accordingly, Corizon has not alkged I lllC is enriched at Corizon's expense. and the claim fails. IV. CONCLUSION For the reasons discussed above, the motion shall be granted in part and denied in part. The first two claims, for breach of contract and a declaratory judgment, survive. The third claim, for unjust enrichment. will be dismissed. It is hereby ORDERED that the motion of defendant New York City Health and Hospitals Corporation to dismiss the complaint (motion sequence number 00 I) is GRANTED to the extent that the Third Cause of Action alleging unjust enrichment is DISMISSED and is otherwise DENIED. This constitutes the decision and order of the court. DATED: .luly 12, 2019 0. PETER SHI£RWOOD .J.S.C. 10 11 of 11

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