Plaintiff Garfield Hector was employed by Wal-Mart, Inc. and
enrolled in defendant Wal-Mart Associates Health and Welfare
Plan ("Plan") at all relevant times. Plaintiff received medical
care as a result of injuries sustained in an automobile accident
on April 28, 1995. Although some medical bills were paid,
defendant denied coverage for charges associated with ambulatory
transport to University Hospital as well as treatment received
at University Hospital on the date of the accident. Plaintiff
alleges that he submitted these claims on May 21, 1995. However,
defendant disputes this claim alleging that the ambulance and
treatment charges were not submitted until April and May 1999,
Presently before the Court is defendant's motion for summary
judgment pursuant to Federal Rule of Civil Procedure 56.
Defendant argues that plaintiffs complaint should be dismissed
because: (i) plaintiffs action is barred because he failed to
exhaust administrative remedies as required by the Plan; (ii)
plaintiff failed to submit the claim within 12 months from the
date of treatment as required by the Plan; and (iii) plaintiffs
action is barred because he failed to commence the lawsuit
within two years from the date he allegedly filed his claim as
required by the Plan. Plaintiff has failed to submit any papers
in opposition to defendant's motion. Similarly, plaintiff failed
to appear for oral argument before the Court on June 21, 2000.
Summary Judgment Standard
Summary Judgment is appropriate when the pleadings,
affidavits, and any other supporting papers demonstrate that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Facts,
inferences therefrom and ambiguities must be examined in a
context which is most favorable to the non-movant. Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106
S.Ct. 1348, 89 L.Ed.2d 538 (1986).
The movant bears the initial burden of showing that there is
no genuine issue as to any material fact. Fed.R.Civ.P. 56;
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548,
91 L.Ed.2d 265 (1986). When the moving party has met this burden
the non-moving party "must do more than simply show that there
is some metaphysical doubt as to the material facts."
Matsushita, at 586, 106 S.Ct. 1348. The moving party must "set
forth specific facts showing that there is a genuine issue for
trial." Fed.R.Civ.P. 56(e); Liberty Lobby, at 250, 106 S.Ct.
Where summary judgment is sought against a pro se litigant
the Court must afford him special solicitude. Graham v.
Lewinski, 848 F.2d 342, 344 (2d Cir. 1988).
Failure to Exhaust Administrative Procedures
The Second Circuit "has clearly recognized `the firmly
established federal policy favoring exhaustion of administrative
remedies in ERISA cases.'" Kennedy v. Empire Blue Cross and
Blue Shield, 989 F.2d 588, 594 (2d Cir. 1993) (quoting
Alfarone v. Bernie Wolff Construction, 788 F.2d 76, 79 (2d
Cir. 1986)); see also Leonelli v. Pennwalt Corp.,
887 F.2d 1195 (2d Cir. 1989); Benaim v. HSBC Bank USA, 94 F. Supp.2d 518,
519 (S.D.N.Y. 2000); Pasqualini v. Sheet Metal Workers'
Nat'l Pension Fund, 54 F. Supp .2d 357, 364 (S.D.N.Y. 1999);
Layaou v. Xerox Corp., 999 F. Supp. 426, 434 (W.D.N.Y. 1998).
Exhaustion of remedies in an ERISA case requires pursuit of
whatever administrative appeals are provided for in the relevant
plan or policy. See Layaou, 999 F. Supp. at 434.
Defendant Plan provides in pertinent part:
If your claim for benefits under the [Plan] is . . .
denied . . . [y]ou will then be entitled to review
documents and request a review by the Plan
Administrator of such decision denying the claim. A
request for review must be in writing and sent . . .
within . . . 90 days for medical coverage
claims. . . . [This]  appeal process does not
reduce a participant's right to initiate legal
action. However, before a participant may bring
legal action in a court in connection with an adverse
decision under the Plan, he or she must pursue this
Plan at pgs. Q-1 to Q-2 (emphasis added).