McCulloch Orthopedic Surgical Services v. Group Health Ins. Incorporated, 156145/14, NYLJ 1202760398071, at *1 (Sup., NY, Decided June 8, 2016)
Group Health Insurance (GHI) moved for summary judgment dismissal of plaintiff physician’s complaint asserting a cause of action for promissory estoppel. Plaintiff claimed GHI promised it would pay 100 percent of the usual and customary cost of several surgeries plaintiff performed on a patient, yet failed to fulfill the promise. GHI alleged it never made such a promise. Plaintiff was an out of network provider, but claimed his employee called GHI and was informed the pan in which a patient was enrolled permitted payment for out of network benefits, noting plaintiff would be paid 100 percent of the usual and customary rates for the intended surgeries. Yet, plaintiff alleged GHI refused plaintiff’s appeal to pay for the two surgeries, claiming he was owed nearly $45,000. GHI argued plaintiff’s evidence was insufficient to establish the elements of promissory estoppel, but the court stated a moving defendant did not meet its burden of affirmatively establishing its entitlement to summary judgment simply by pointing to gaps in plaintiff’s case, but must affirmatively show the merits of its defense. As GHI failed to make a prima facie showing on such motion, it failed to meet its burden on summary judgment, and same was denied.
The Court stated:
A claim for promissory estoppel is based on three elements: “(1) a promise that is sufficiently clear and unambiguous; (2) reasonable reliance on the promise by a party; and (3) injury caused by the reliance.” Schroeder v. Pinterest Inc., 133 AD3d 12, 32 (1st Dept 2015); see also New York City Health & Hosps. Corp. v. St. Barnabas Hosp., 10 AD3d 489, 491 (1st Dept 2004). GHI’s motion is based on the gaps in plaintiff’s proof that a “clear and unambiguous promise” was made, because Hergazi is not available to testify, and because the notation “OON 100 percent” is ambiguous. However, “a moving defendant does not meet its burden of affirmatively establishing its entitlement to summary judgment by merely pointing to gaps in the plaintiff’s case; rather, it must affirmatively demonstrate the merit of its defense.” Vanderhurst v. Nobile, 130 AD3d at 717; see also Setter v. Fire Is. Ferries, Inc., __AD3d__, 2016 NY Slip Op 03730, *1 (2d Dept 2016). In the present instance, GHI has failed to make a prima facie showing on its motion for summary judgment. It has failed to provide evidence by means of any sort of record, or by the testimony of a person with knowledge, that none of its representatives spoke with plaintiff’s office on the date in question, or that the promise was not made, or was made in some different form. The court assumes that GHI keeps some records of its transactions, whether written or taped,2 which might show whether or not its representatives spoke to Hergazi, and what transpired in that call, if such a call was received. Without such a prima facie showing, GHI has failed to meet its burden on summary judgment, regardless of whether plaintiff can or cannot prove its case at this time. Therefore, the motion must be denied.
Another argument could have been course of dealing.