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March 1, 1994

GOLDIE MILLER, as Executrix of the Estate of SARAH M. POTOK, Plaintiff,

The opinion of the court was delivered by: JOHN R. BARTELS

 Bartels, U.S. District Judge.

 Plaintiff Goldie Miller brings this action on behalf of her deceased sister, Sarah Potok, against defendant United Welfare Fund to recover medical benefits under the Employment Retirement Income Security Act ["ERISA"], 29 U.S.C. ┬ž 1132(a)(1)(B). The parties have each moved for summary judgment pursuant to Federal Rule of Civil Procedure ["Rule"] 56. For reasons more fully explained herein, the cross-motions for summary judgment are denied.


 The United Welfare Fund ["the Fund"] is an "employee welfare benefit plan" as defined by ERISA. The Fund employed Aetna Life Insurance Company as a third-party administrator to process claims. The Agreement and Declaration of Trust governing the Fund, as amended July 16, 1990, provides that the Fund Trustees have "discretionary authority to construe the terms of the Plan and to determine eligibility for benefits thereunder." The Fund's Basic and Major Medical Benefits Plan ["the Plan"] provides coverage for nursing services as follows:

Professional nursing services by a registered graduate nurse (R.N.), or licensed practical nurse (L.P.N.) where medically necessary for the care and treatment of a diagnosed sickness or injury and certified as such by the attending Physician. . . . Nursing services performed to help or supervise a patient's basic needs, administer to the patient's activities of daily living or provide custodial care are not covered. . . . Private duty nursing services are covered only to the extent that they are medically necessary.

 In October 1990, Sarah Potok, a participant of the Fund, was hospitalized at New York University Hospital for emergency coronary bypass surgery. On December 18, 1990, Potok filed a Benefit Request Form seeking reimbursement in the amount of $ 14,060.50 for private duty nursing care during her hospital stay. The claim included a letter from Dr. James A. Blake, Potok's cardiologist, stating that Potok's "medical team recommended to her that she have full time private duty nursing", and that "the thorough nursing care which she received is in large part responsible for the superb improvement which this patient demonstrated." Although she recovered from the cardiac surgery, Potok died of hepatitis in March 1991.

 On March 7 and April 10, 1991, Aetna requested additional information, including a copy of the nursing notes, to support Potok's claim for private duty nursing expenses. Potok's sister, Goldie Miller, forwarded a copy of the notes as requested. On June 26, 1991, Aetna informed Miller that the claim was denied, stating:

For nursing services rendered during a hospital confinement to be medically necessary, the nature of the illness or injury must require constant medical care that could not have been performed by the general nursing staff. In our opinion, the care rendered could have been rendered by the hospital's nursing staff.

 The letter from Aetna advised plaintiff that she had a right to review of the benefits determination and explained the procedure for obtaining review.

 On April 29, 1993, a sub-committee of the Fund's Board of Trustees met and considered plaintiff's appeal of the denial of her claim. By letter dated June 23, 1992, the Administrator of the Fund, Edward L. Byrne, informed plaintiff that her appeal had been denied, for the same reason initially offered by Aetna. At Byrne's deposition on September 21, 1993, he testified that he was present at the April 29 meeting, but had no independent recollection of the Board's consideration of plaintiff's claim. Byrne further stated that the Trustees based their decision to deny the appeal on three factors: Dr. Blake's letter, the notes prepared by the private duty nurses, and Aetna's recommendation.

 On April 15, 1993, plaintiff Goldie Miller, as Executrix of the Estate of Sarah M. Potok, filed an action against the Fund in the Civil Court of the State of New York for the County of Queens. Defendant subsequently removed the suit to this court. In this federal action, plaintiff seeks payment of the claim for Potok's private duty nursing care pursuant to ERISA.

 Defendant has moved for summary judgment, claiming that the court should defer to the decision of the Board of Trustees. In opposition, and in support of her motion for summary judgment, plaintiff claims the denial of benefits by the Trustees was arbitrary ...

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