Kwasnik v. Oxford Health Insurance, Inc.

• Court: District Court, S.D. New York
• Decided: June 27, 2022
• Docket: 1:22-cv-04767
• Status: Unknown

Opinion

oe □ |PUSDC SDNY _ DOCUMENT . SOUTHERN DISTRICT OF DOC #: NEW YORK . DATE FILED:_ 6/27/2022 FIANA KWASNIK, Plaintiff, Civil Action No. □□ 22-cv 4767(VEC) NOTICE OF MOTION TO REMAND | . ORAL ARGUMENT REQUESTED ~against-— OXFORD HEALTH INSURANCE, INC. and ISLAND PEER REVIEW ORGANIZATION, INC, . . Defendants. Jovana Vujovic Robinson & Cole LLP a □ 666 Third Avenue, 20th Floor . New York, NY 10017 Tel: 212-451-2900 . Email: jvujovic@re.com oe Attorney for Defendant Oxford Health Insurance, Inc, —

Jennifer M. Horowitz ee

. Epstem Becker Green 875 Third Avenue New York, NY10022. Tel: 212-351-4622. Email: jhorowitz@ebglaw.com Attorney for Defendant {sland Peer Review Organization, Inc.

PLEASE TAKE NOTICE that Fiana Kwasnik CPlaimnti ff-Petiti oner”) will move tHe Court on nalf 2022, at 9:30 a.m., or as soon thereafter ts the matter might be heard, for an □ Order remanding this case to New York County Supreme Court and awarding costs and attorney’s fees. Plaintiff-Petitioner respectfully requests that defendants respond to.

this motion twenty (20) days from the date of filing of this motion, and the Plaintiff. Petitioner’s Reply will due five (5) days after the Response is served and filed. Plaintiff-Petitioner requests oral argument on the motion and the disposition of that □

request will await further attention by the Court. ‘The basis for the motion is set forth in detail the attached memorandum of law that accontipanies this motion and in the hybrid Verified Complaint and Petition that are part of the papers that were ‘presented to this Court by Defendant Oxford Health Insurance, Inc. (“Oxford”) as part of the removal process,

In suminary form, the basis for this motion is: □ (POINT D. 1, Piaintiff-Petitioner’s claims are not preempted nor removable under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 USC. § § 1132 (a\(1)(B), and do not allege claims covered by ERISA per the standards initially set forth in Ky, Ass'n of Health Plans v Miller, 538 US 329 and further clarified by Aetna Health Inc. v. Davila, 542 U.S. 200 (2004), ee

(POINT ID).

- 2. The claims asserted in Plaintiff-Petitioner’s hybrid Verified Complaint and Petition related to New York Insurance Law §§ 3221(k)(6)(C)(wii) and 4303(s)(3)(G), effective

January 1, 2020 (the “IVF Mandate’) which requires that large, fully-insured group insurance policies in the State of New York cover up to three (3) rounds of in-vitro fertilization (“IVF”) to treat the disease of infertility. The IVF Mandate regulates insurance companies doing business im the. State of New York, such as Oxford. Additionally, Plaintiff-Petitioner’s right to an external appeal with defendant Island Peer Review Organization, Inc. (“IPRO”) is governed under New York Insurance Law, NY. Ins. Law §§ 4910, 4914. Plaintiff-Petitioner exhausted all administrative remedies with the defendants as required by Plaintiff: Petitioner's health insurance plan with Oxford as required under New York Insurance Law. Per Ky. Ass'n of Health Plans v Miller, 538 ULS 329, the state laws in question are “specifically directed toward the insurance industry” and therefore falls under 29 U.S.C. § 1144(b)(2)(A), the savings clause of ERISA, and is therefore saved from preemption. — .

(POINT III). □ . 3. Defendants must know that the plan. that they pufport to administer and which they claim is controlling in this case is fully-insured and for that reason is not pre-empted pursuant to ERISA's “deemer clause.” § 29 U.S.C.1 144(b)(2\(B).

(POINT IV). 4. The nature of an Article 78 proceeding asserted by Plaintiff-Petitioner under New York Law (Civil Practice Law and Rules) is not assettable under ERISA. As with Point UI, an □

Article 78 petition is not a question of federal law and should not be brought under ERISA.

(POINT VY). |

_ 35. For there to be complete preemption of claims by ERISA, it must be established that “there is no other independent legal duty implicated by defendant’s actions.” In this case, there is another independent {egal duty implicated. See New York Insurance Law □□ 3221(k)(6)(C)(vii) and 4303(s)(3)(G), N.Y. Ins. Law §§ 4910, 4914 and CPLR Articles _ §§7801, 7802 and 7803.

(POINT VD. 6, Defendant IPRO cannot waive sovereign immunity on behalf of the State of New “York.

(POINT VID. . 7, Plaintiff is entitled to remand and to its costs and attorney’s foes.

Dated: June 24, 2022 □

Dutchess County . □□

GRANTED in part. Defendants’ deadline to pectfulyy subfMitted, the motion to remand is July 14, 2022; Plaintiff's reply a pill by no later than July 21, 2022. Pursuant to Rule 4(D) -|. ( {es ROM. RKOTAL . = ada acto he Com wl | am or Paitit I . ‘ whether to hear oral arg 137 Creek Road, ORDERED. : PLEASANT VALLEY, NEW YORK 12569 oy | 917.825 4853 □ Date: 6/27/ 2022 RKwasnik@Verizon.net . VALERIE CAPRONI STATES DISTRICT JUDGE □□