| Gualano v Abington Sq. Condominium Assn. |
| 2010 NY Slip Op 00471 [69 AD3d 793] |
| January 19, 2010 |
| Appellate Division, Second Department |
| Eligio Gualano et al., Appellants, v Abington SquareCondominium Association, Defendant. Oxford Health Plans et al., NonpartyRespondents. |
—[*1] Summers Law Firm, P.C., Albany, N.Y. (John Jay S. Arnold IV of counsel), for nonpartyrespondents.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from (1) anorder of the Supreme Court, Westchester County (Nicolai, J.), entered December 7, 2007, whichdenied the plaintiffs' motion to extinguish a purported lien and/or claim asserted by OxfordHealth Plans and the Rawlings Company, LLC, on settlement proceeds paid to them by thedefendant, and (2) an order of the same court (Donovan, J.), entered November 6, 2008, which,after a hearing, directed them to reimburse Oxford Health Plans the sum of $91,672.75 from thesettlement proceeds already paid to the plaintiffs by the defendant held in trust.
Ordered that the orders are affirmed, with one bill of costs.
The injured plaintiff and his wife, suing derivatively, commenced this action against thedefendant Abington Square Condominium (hereinafter Abington Square) to recover damages forpersonal injuries sustained as the result of an alleged slip-and-fall accident that occurred onMarch 23, 2003. At the time of the accident, the injured plaintiff was insured by Oxford HealthPlans (hereinafter Oxford) and Oxford paid approximately $91,672.75 on his behalf for medicalexpenses allegedly related to the accident. The Oxford Health Plan (hereinafter the contract)entered into between Oxford and the injured plaintiff permitted Oxford to recover directly fromthe injured plaintiff "the reasonable value" of medical expenses it paid on behalf of the injuredplaintiff relating to injuries caused by "the act of a third party" when there has been a settlementwith the third party, provided that "the settlement . . . specifically identifiesamounts paid for healthcare services."
The plaintiffs settled with Abington Square in the sum of "$650,000 inclusive ofdisbursements [and] liens." The plaintiffs and Abington Square also entered into a hold harmlessagreement, in accordance with the settlement, that provided that it was the plaintiffs'"responsibility to satisfy any lien asserted against the settlement proceeds or arising from thesettlement," and specifically pointed out that Oxford had asserted a right to reimbursementagainst the plaintiffs. The hold harmless agreement stated that the plaintiffs disputed Oxford'sclaims, but the plaintiffs agreed to hold the amount claimed by Oxford in trust.
The plaintiffs moved to extinguish the purported lien and/or claim asserted by Oxford [*2]and the Rawlings Company, LLC, which was thesubrogation/reimbursement vendor for Oxford. An order entered December 7, 2007, denied theplaintiffs' motion and directed a hearing to determine, in effect, the amount of Oxford's claim. Inan order entered November 6, 2008, after the hearing, the Supreme Court directed the plaintiffsto pay $91,672.75 to Oxford from the settlement proceeds that were held in trust. The plaintiffsappeal from both orders. We affirm.
The Supreme Court, in the order entered November 6, 2008, properly determined that theprior order entered December 7, 2007, denying, on the merits, the plaintiffs' motion to extinguishthe purported lien and/or claim was the law of the case (see Hampton Val. Farms, Inc. v Flower & Medalie, 40 AD3d 699,701 [2007]; Brownrigg v New YorkCity Hous. Auth., 29 AD3d 721, 722 [2006]). In any event, contrary to the plaintiffs'contention, Oxford was entitled to seek reimbursement from the settlement proceeds thedefendant paid to the injured plaintiff for medical expenses Oxford paid on his behalf relating toinjuries he sustained in the slip-and-fall accident. The hold harmless agreement, made inaccordance with the settlement, and the representation of the plaintiffs' counsel that thesettlement was inclusive of all liens and disbursements, which was made with the knowledge thatOxford was seeking recovery from the injured plaintiff, established that health care services werepart of the settlement. In fact, the plaintiffs' verified complaint and bill of particulars specificallystated that the injured plaintiff was seeking damages for medical expenses he incurred, eventhough Oxford paid these expenses on his behalf (see generally Teichman v CommunityHosp. of W. Suffolk, 87 NY2d 514, 523 [1996]).
Contrary to the plaintiffs' contention, the Supreme Court properly determined that themedical expenses Oxford paid on behalf of the injured plaintiff related to the injuries hesustained from the slip-and-fall accident at issue.
The plaintiffs' remaining contentions either have been rendered academic in light of ourdetermination, or are without merit. Covello, J.P., Angiolillo, Balkin and Sgroi, JJ., concur.