The following papers read on this motion: Notice of Motion and Affidavits X Memorandum of Law in Support X Memorandum of Law in Opposition X Reply Memorandum of Law X Relief Requested The defendant moves for an order pursuant to CPLR 3211(a)(1) and (7), dismissing the instant action. The defendant submits a memorandum of law in support of its motion. The plaintiff submits a memorandum of law in opposition. The defendant submits a reply memorandum of law. Background The plaintiff medical practice initiated the instant action to recover from the defendant insurance program for allegedly underpaid and unpaid claims stemming from 188 procedures performed by plaintiff on 105 patients. The plaintiff alleges causes of action for breach of contract, breach of implied contract, unjust enrichment, violation of Insurance Law _ 3224-a, and third party beneficiary breach of contract. Applicable Law A party seeking to recover under a breach of contract theory must prove that a binding contract was made as to all essential terms (Josephson v. Oxford Health Ins., Inc., 2012 NY Slip Op 32112, quoting Silber v. New York Life Ins., 92 A.D.3d 436). An implied-in-fact contract requires an indication of a meeting of the minds manifested by the acts and conduct of the parties (Josephson, supra, citing DG & A Management Services v. Securities Indus Ass’n., 52 A.D.3d 922). A third party seeking to enforce a contract must establish that it was an intended beneficiary of the contract rather than merely an incidental beneficiary (Cole v. Metropolitan Life Ins. Co., 273 A.D.2d 832, citing Fourth Ocean Putnam Corp. v. Interstate Wrecking Co., 66 N.Y.2d 38). “One is an intended beneficiary if one’s right to performance is ‘appropriate to effectuate the intention of the parties’ to the contract and either the performance will satisfy a money debt obligation of the promisee to the beneficiary or ‘the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance” (Cole, supra, quoting Lake Placid Club Attached Lodges v. Elizabethtown Bldrs., 131 A.D.2d 159). On the other hand, “[a]n incidental beneficiary is a third party who may derive [a] benefit from the performance of a contract though he is neither the promise nor the one to whom performance is to be rendered” (Cole, supra, quoting Airco Alloys Div. v. Niagara Mohawk Power Corp., 76 A.D.2d 68). An action for unjust enrichment is based upon an obligation imposed by equity to prevent injustice, in the absence of an actual agreement between the parties (Josephson, supra, citing IDT Corp. v. Morgan Stanley, 12 N.Y.3d 132). The Prompt Pay Law requires insurers to pay undisputed claims as well as the undisputed portions, if any, of claims that are disputed within a certain time period, and obligates insurers to provide notice in writing any additional information which may be needed and of the specific reason for any denial (Insurance Law _ 3224-a). Discussion In support of its motion, the defendant submits the affidavit of Sharon L. Wakefield, as well as Empire Plan Certificates. Ms. Wakefield avers that these certificates represent all certificates of coverage in effect during the relevant period. Each certificate contains a clause stating “[a]ssignment of benefits to a nonparticipating provider is not permitted.” Here, the plaintiff acknowledges that it is an “out-of-network” provider. “[I]t has been consistently held that assignments made in contravention of a prohibition clause in a contract are void if the contract contains clear, definite and appropriate language declaring the invalidity of such assignments” (Cole, supra, quoting Macklowe v. 42nd St. Dev. Corp., 170 A.D.2d 388). Accordingly, although many of plaintiff’s patients had assigned their benefits to plaintiff, those assignments are void (see Cole, supra; see also Macklowe, supra). Further, it has been held that an insurer’s conduct of undertaking to pay out-of-network providers does not indicate a meeting of the minds constituting an implied-in-fact contract, and that such a contract would be void for indefiniteness as it would lack a reasonably certain basis for enforcement (see Josephson, supra). Likewise, there is no evidence of an intent to benefit plaintiff or a class of which plaintiff is a member in a contract intended to benefit New York State employees by providing medical insurance (see Cole, supra). To prevent injustice, an out-of-network provider who has not been paid at reasonable and customary rates may maintain an action for unjust enrichment (see Josephson, supra). The defendant’s motion to dismiss plaintiff’s claim for violation of Insurance Law _ 3224-a is granted on the grounds that this claim is duplicative of plaintiff’s unjust enrichment claim (Id). Conclusion In light of the foregoing, it is hereby ORDERED that the defendant’s motion to dismiss is granted as to the plaintiffs’ first, second, fourth, and fifth causes of action, and it is further ORDERED that the defendant’s motion to dismiss is denied only as to plaintiff’s third cause of action for unjust enrichment, and it is further ORDERED that the parties are hereby directed to appear for a Preliminary Conference which shall be held at the Preliminary Conference part located at the Nassau County Supreme Court on the 2nd day of April, 2020, at 9:30 A.M. This directive, with respect to the date of the Conference, is subject to the right of the Clerk to fix an alternate date should scheduling require. The attorneys for the plaintiff shall serve a copy of this order on the Preliminary Conference Clerk and the attorneys for the defendants. Dated: February 18, 2020
