PEKLER v. HEALTH INS. PLAN OF GREATER N.Y

Citation Codes

Equivalent Citations

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Docket Number

Nos. 2008-04115, 2008-04116.

Attorney(S)

Broach Stulberg, LLP, New York, N.Y. (Amy F. Shulman, Robert B. Stulberg, and Michael H. Isaac of counsel), for appellants-respondents. Stroock Stroock Lavan, LLP, New York, N.Y. (Albert M. Appel and Eileen Martínez of counsel), for respondent-appellant Health Insurance Plan of Greater New York. Nixon Peabody, LLP, Jericho, N.Y. (Gary P. Schulz and Medea Ansari Myers of counsel), for respondent-appellant Greater Staten Island Medical Group, P.C. Steven M. Nachman, New York, N.Y., for respondent-appellant Staten Island Physician Practice, P.C.

Judges

Reinaldo E. Rivera
Robert J. Miller
Leonard B. Austin

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GERALD PEKLER et al., Appellants-Respondents, v. HEALTH INSURANCE PLAN OF GREATER NEW YORK, Respondents-Appellants, et al., Defendant.

Ordered that the appeal and cross appeals from the order are dismissed, as that order was superseded by the amended order; and it is further,

Ordered that the amended order is modified, on the law, by deleting the provision thereof denying those branches of the separate motions of the defendants Health Insurance Plan of Greater New York, Greater Staten Island Medical Group, P.C., doing business as Staten Island Medical Group, and Staten Island Physician Practice, P.C., which were to dismiss the fifth cause of action to recover in quantum meruit for services rendered insofar as asserted against each of them, and substituting therefor a provision granting those branches of the separate motions; as so modified, the amended order is affirmed insofar as appealed from, without costs or disbursements, and the order is modified accordingly.

On a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7), the court must afford the pleadings a liberal construction, accept the allegations of the complaint as true, and provide the plaintiff the benefit of every possible favorable inference ( see CPLR 3026; AG Capital Funding Partners, L.P. v State St. Bank Trust Co., 5 NY3d 582, 591; Leon v Martinez, 84 NY2d 83, 87-88). Doing so here, the Supreme Court should have dismissed the fifth cause of action. As the complaint alleges that medical services were performed by the plaintiff doctors at the behest of their patients, no claim in quantum meruit can be asserted against the defendants ( see Kirell v Vytra Health Plans Long Is., Inc., 29 AD3d 638; JLJ Recycling Contrs. Corp. v Town of Babylon, 302 AD2d 430, 431; Prestige Caterers v Kaufman, 290 AD2d 295, 296; Schuckman Realty v Marine Midland Bank, 244 AD2d 400, 401; Kagan v K-Tel Entertainment, 172 AD2d 375, 376; Citrin v Columbia Broadcasting Sys., 29 AD2d 740, 741; Armstrong v I.T.T.S. Corp., 10 AD2d 711, 712).

The parties' remaining contentions are without merit.

[ See 19 Misc 3d 1102(A), 2008 NY Slip Op 50471(U).]

GERALD PEKLER et al., Appellants-Respondents, v. HEALTH INSURANCE PLAN OF GREATER NEW YORK, Respondents-Appellants, et al., Defendant.

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