Santorello v State Farm Ins. Co. (2017 NY Slip Op 50829(U))

CV-011318-14

Law Offices of Joseph B. Strassman, attorneys for Plaintiff, 11 Clinton Avenue, Rockville Centre, New York 11570, (516) 766-7007; Richard T. Lau & Associates, attorneys for Defendant, P.O. Box 9040, 300 Jericho Quadrangle, Suite 260, Jericho, New York 11753-9040, (914) 229-6000.

The following named papers numbered 1 to 4

submitted on this Motion on April 24, 2017

papers numbered

No-Fault Notice of Motion for Summary Judgment1Attorney’s Affirmation2

Reply Affirmation3

Memorandum of Law4

The plaintiff commenced this action seeking reimbursement from the defendant for chiropractic treatment she received as a result of a motor vehicle accident which occurred on May 8, 2008. The defendant moves for summary judgment, pursuant to CPLR 3212, on the ground that the plaintiff executed an Assignment of Benefits to the treating doctor, and as such, lacks standing to maintain this action.

It is uncontroverted that the plaintiff was injured in an automobile accident and received chiropractic treatment from a Christopher Skurka, D.C. It is also uncontroverted that the plaintiff executed an Assignment of Benefits to Dr. Skurka, of her no-fault benefits. As such, the defendant moves for summary judgment.

Summary judgment is drastic relief – – it denies one party the opportunity to go to trial. Thus, summary judgment should only be granted where there are no triable issues of fact (see Andre v Pomeroy, 35 NY2d 361 [1974]). The focus for the court is on issue finding, not issue determining (see Hantz v Fishman, 155 AD2d 415 [2d Dept 1989]).

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence in admissible form to demonstrate the absence of any material issues of fact. Failure to make such a prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v NY Univ. Med. Ctr., 64 NY2d 851 [1985]). Once the movant has demonstrated a prima facie showing, the burden shifts to the non-moving party, 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 Zuckerman v New York, 49 NY2d 557 [1980]).

In support of the instant motion, the defendant submits, inter alia, the affirmation of Jeremey R. Maline, Esq., an attorney of the law office of Richard T. Lau & Associates; the affidavit of Beverly A. Croteau, a Claim Representative for State Farm Mutual Automobile Company; and a copy of an Assignment of Benefits signed by the plaintiff and Dr. Shurka D.C., dated May 29, 2008, establishing that the plaintiff assigned to Dr. Skurka D.C., all of her “rights privileges and remedies to payment for health care services” to which she would otherwise be entitled to (see Plaintiff’s Memorandum of Law, Exhibit A). The defendant contends that as a result of the Assignment to Dr. Shurka, D.C., the plaintiff’s action must be dismissed.

In reliance thereon, the defendant cites Lopes v Liberty Mutual Insurance Company, 24 Misc 3d 127(A) (App Term, 2nd, 11th, and 13th Jud Dists 2009). In Lopes, the plaintiff sought reimbursement from her insurance company after making payments directly to several medical providers. The court granted the defendant’s motion in part, finding that the executed assignment of benefits deprived the plaintiff of standing. In doing so, the court stated that for an assignment to be valid, it must assign “all rights, privileges and remedies to the assignee.” The court further held:

“The no-fault regulations contemplate payment directly to an EIP or her legal representative, unless said individual has executed an assignment, in which case payment shall be made directly to providers of health care services (Insurance Department Regulations [11 NYCRR]§65-3.11[a])… An insurer [*2]seeking dismissal pursuant to CPLR 3211(a)(7), on the ground that the claim has been assigned by the plaintiff EIP to a provider, bears the burden of demonstrating that the claim submitted by the health care provider was submitted on such provider’s own behalf by demonstrating that there was an assignment…. Defendant submitted documents that clearly assign plaintiff’s claims for services rendered… . As a result, plaintiff’s causes of action seeking reimbursement for said services were properly dismissed under CPLR 3211(a)(7), because defendant demonstrated that the providers submitted the claims on their own behalf and the causes of action are being asserted by an individual without standing.”

In the case at bar, the New York Motor Vehicle No-Fault Insurance Law Assignment of Benefits Form signed by the plaintiff on May 29, 2008, provides:

“I, Carla Santorello, (“Assignor”) assigns to Dr. Shurka (“Assignee”) all rights privileges and remedies to payment for health care services provided by assignee to which I am entitled under Article 51 (the No-Fault statute) of Insurance Law.

The assignee hereby certifies that they have not received any payment from or on behalf of the Assignor and shall not pursue payment directly from the Assignor for services provided by said Assignee for injuries sustained due to the motor vehicle accident which occurred on 5/8/08, notwithstanding any prior written agreement to the contrary.

This agreement may be revoked by the assignee when benefits are not payable based upon the assignor’s lack of coverage and/or violation of a policy condition due to the actions or conduct of the assignor.”

Here, the subject Assignment clearly and unambiguously transferred the plaintiff’s rights for the reimbursement of no-fault benefits to Dr. Skurka, D.C. As such, the plaintiff’s cause of action seeking reimbursement of those medical expenses cannot be sustained, given her lack of standing (see also Hernandez v Kalpakis, 2014 WL 12680588 [Supreme Ct, Nassau County]). The defendant having met its burden, the burden shifts to the plaintiff to establish a triable issue of fact.

However, in opposition, counsel for the plaintiff wholly fails to address the issue of the plaintiff’s lack of standing to sue based upon the assignment. Moreover, no affidavit is submitted from the plaintiff herself. The attorney’s affirmation alone is insufficient to raise an issue of fact warranting a trial (see Barbieri v D’Angelo, 128 AD2d 661[2d Dept 1987]). Accordingly, the defendant’s motion for summary judgment is granted, and the action is dismissed.

This constitutes the decision and order of the court.

Hon. Scott Fairgrieve

DISTRICT COURT JUDGE

Dated:June 21, 2017