United States District Court, S.D. New York
December 22, 2005.
ANTONIO ANGLERO Plaintiff,
VENICE ANGLERO, Defendant v. BUILDING SERVICES 32B-J BENEFIT FUND and 10 WEST 66th STREET CORP., Third Party Defendants.
The opinion of the court was delivered by: HAROLD BAER JR., District Judge.[fn*] [fn*] Priti R. Vakharia, a fall 2005 intern in my chambers, and currently a second year law student at New York Law School, provided substantial assistance in the research and drafting of this Opinion.
OPINION & ORDER
Third Party Defendant, Building Service 32 B-J Benefit Fund
("Benefit Fund") moves for Summary Judgment against Venice
Anglero ("Ms. Anglero"). For the following reasons the motion is
On June 2, 2004, a judgment of divorce was entered on behalf of
Plaintiff, Antonio Anglero ("Mr. Anglero") and Defendant, Venice
Anglero ("Ms. Anglero") in Supreme Court of the State of New
York, New York County. For reasons not pertinent here, Justice
Drager vacated that Judgment on March 18, 2005. On May 17, 2005,
Ms. Anglero moved by Order to Show Cause for a determination that
Mr. Anglero's Benefit Fund cover her pursuant to the Consolidated
Omnibus Budget Reconciliation Act ("COBRA"),
28 U.S.C. §§ 1161-1168, for the period of time between the entry of the
original judgment of divorce on June 2, 2004 through March 18,
2005 as well as the period after the judgment was vacated on
March 18, 2005 to the present; and that her daughter, Bianca, be
entitled to continued medical benefits despite the Angleros'
divorce. Ms. Anglero contends that following her divorce, she did not
receive notice of her continuing coverage rights under COBRA. She
also claims that she was denied medical coverage and that
employees of the Benefit Fund told her that divorced spouses were
not entitled to COBRA benefits. The Benefit Fund's records show
that Ms. Anglero's daughter, Bianca, was and continues to be
covered under Mr. Anglero's policy and that no break in coverage
occurred. The Benefit Fund also contends that Ms. Anglero's COBRA
notice was first sent on July 2, 2004, and a second notice was
sent on November 16, 2004. The Benefit Fund received a check from
her for one month's premium on November 24, 2004 and credited Ms.
Anglero as covered for the month of December 2004. The Benefit
Fund claims not to have received any further premiums.
On June 8, 2005, the Benefit Fund removed this action to
federal court pursuant to the Employee Retirement Income Security
Act ("ERISA"), 29 U.S.C. § 1001 et. seq., 29 U.S.C. § 1132(e),
which confers federal jurisdiction over ERISA claims, and filed a
motion for summary judgment. After a pre-trial conference on
September 1, 2005, I remanded the divorce action to the Supreme
Court of the State of New York, New York County, and retained
jurisdiction over the ERISA claims.
A court will not grant a motion for summary judgment unless it
determines that there is no genuine issue of material fact and
the undisputed facts are sufficient to warrant judgment as a
matter of law. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby Inc.,
477 U.S. 242, 250 (1986). To determine whether there is a genuine
issue of material fact, the Court must resolve all ambiguities,
and draw all inferences, against the moving party, in this case
the Benefit Fund. United States v. Diebold, Inc., 369 U.S. 654,
655 (1962) (per curiam).
ERISA requires insurance plan administrators to include a
claims procedure in their policy documents. Greifenberger v.
Hartford Life Insurance Co., 2003 U.S. Dist. Lexis 22810 at *11
(S.D.N.Y. December 16, 2003). That procedure must include
"reasonable opportunity for a full and fair review after denial
of a claim." Greifenberger v. Hartford Life Insurance Co.,
2003 U.S. Dist. Lexis 22810 at *12 (S.D.N.Y. December 16, 2003) (quoting 29 U.S.C. § 1133 (2)) (citation omitted).
Exhaustion of these administrative remedies is a prerequisite to
suit in federal court. Id. This is so even if the beneficiary
is ignorant of the insurance plan's proper claims procedure.
Davenport v. Harry N. Abrams, Inc., 249 F.3d 130, 134 (2d Cir.
In this case, the Benefit Fund has a Summary Plan Description
("SPD") which sets forth the procedure for making a claim under
the Fund's plan. (SPD 49-54). Exhaustion of administrative
procedures with in the Fund is a condition precedent to suit in
the District Court. First, the beneficiary must request coverage
for a particular claim. (SPD 48-49). The Benefit Fund then
reviews the request and makes a determination as to whether the
claim is covered under the policy. (SPD 48-49). If a claim is
denied, the beneficiary may appeal within 180 business days from
the first notice of an adverse determination. (SPD 51-54).
Despite the issues surrounding the Benefit Fund's employees and
their apparent unwillingness to help Ms. Anglero when she first
attempted to exercise her COBRA rights, it appears that she has
not exhausted her administrative remedies. The Benefit Fund
argues and Ms. Anglero does not deny that she has not followed
the appeals procedure set forth in the SPD. Under the Plan, Ms.
Anglero must first make a claim and be denied by the Fund.
Thereafter, she may appeal the denial and if the Fund maintains
its position then she would have exhausted her administrative
remedies and may bring suit in federal court to determine
coverage. She failed to appeal any alleged denials of coverage to
the Benefit Fund. Unfortunately, until she does, we cannot reach
issues of eligibility.
For the reasons stated above, Building Services 32-J Benefit
Fund's motion for Summary Judgment is GRANTED. The Clerk of the
Court is directed to close this motion and remove this case from
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