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Orthopedic Spine Care of Long Island, P.C v. J.I. and Rochelle Ingardia

August 25, 2011


The opinion of the court was delivered by: Seybert, District Judge:


Orthopedic Spine Care Of Long Island, P.C. ("Plaintiff") sued J.I. and Rochelle Ingardia ("Defendants") on an account stated claim arising out of unpaid medical bills. Pending before the Court is Plaintiff's unopposed motion for summary judgment; for the following reasons, the motion is GRANTED.


Plaintiff sued Defendants for an account stated in connection with medical services rendered in 2006. As required when moving for summary judgment against pro se litigants, Plaintiff sent Defendants "notice of the requirements of Rule 56." Irby v. N.Y.C. Transit Auth., 262 F.3d 412, 414 (2d Cir. 2001). Defendants have not responded to Plaintiff's Local Civil Rule 56.1 Statement of Undisputed Facts. Accordingly, the facts contained therein are deemed admitted. See LOCAL CIV. R. 56.1(c);

Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir. 2003) ("if the opposing party then fails to controvert a fact so set forth in the moving party's Rule 56.1 statement, that fact will be deemed admitted").

In December 2003, as a result of an automobile accident, J.I. became a patient of Plaintiff. (Pl. 56.1 Stmt. ¶ 6.) At that time, J.I. was under the age of 18 and his mother, Rochelle Ingardia, signed a Patient Information and History Form authorizing payments of medical benefits to OSCLI for any services rendered to her son. (Id. at ¶ 9.) Additionally, Ms. Ingardia also agreed to be personally liable for any payments due for these medical services. (Id. at ¶ 10.) On March 24, 2006, J.I. reached the age of 18 and signed an additional Patient Information and History Form agreeing to be personally liable for the medical services he received. (Id. at ¶ 11.)

In June 2006, Plaintiff's physicians performed pre-surgical and extensive spinal surgery procedures on J.I. (Id. at ¶ 12.) For the pre-surgical services rendered, the total charge was $1,175. (Id. at ¶ 13.) The surgery charges totaled $193,175, which were divided into three claims: claim #618456269 for $106,500; claim #61845630330 for $43,500; and claim #61845630390 for $42,000. (Id. at ¶ 14.) Plaintiff submitted these claims to Defendants' insurance company, Empire BlueCross BlueShield. (Id. at ¶ 16.)

According to Empire, it made payments on Defendants' claims directly to the Defendants. (Id. at ¶ 17.) Most of that money, however, was not forwarded to Plaintiff. Instead, for the services rendered, Plaintiff received the following partial payments: a check for $175 paid by Defendant Rochelle Ingardia; $91.00 and $3,805.06 paid by Empire directly by check to Plaintiff. (Id. at ¶ 18.) Currently, the balance of the claim, and the amount Plaintiffs seek in this action, is $189,103.94 plus interests and costs. (Id. at ¶ 19.) On June 4, 2009, Plaintiff demanded the balance in a letter addressed to J.I. at his current mailing address in Hephzibah, Georgia. (Id. at ¶¶ 20, 21.) When it received no response, Plaintiff sent a second demand for payment on June 17, 2009, again addressed to the Hephzibah, Georgia, address but this time to Ms. Ingardia.

(Id. at ¶ 23.) Both letters were sent certified mail and signed for by Ms. Ingardia. (Id. at ¶¶ 22, 25.)

Plaintiff, not having received a response from either Defendant, filed this action for the balance owed. Both Defendants were personally served with the Summons, Complaint and Amended Complaint at their Hephzibah, Georgia address. (Id. at ¶¶ 28, 29.) Defendants filed their answer shortly thereafter but have failed to defend this action further. Additionally, as required in cases of pro se litigants, after Plaintiff moved for summary judgment, a notice was sent to Defendants explaining the consequences and procedures of that motion. Pl. Notice Pursuant to 56.2. Defendants have not opposed the motion.


The Court first addresses subject matter jurisdiction and then considers Plaintiffs' pending summary judgment motion and requests for interest, attorney's fees, and costs.

I. Subject Matter Jurisdiction

As an initial matter, the Court has diversity subject matter jurisdiction over this case pursuant to 28 U.S.C. ยง 1332. Notwithstanding Defendants' denial that Ms. Ingardia currently resides in Hephzibah, Georgia, she received certified mail at the Georgia address and was personally served there. Willis v. Westin Hotel Co., 651 F. Supp. 598, 601 (S.D.N.Y. 1986) ("An individual's residence at the time a lawsuit is commenced provides prima facie evidence of his domicile.") (emphasis in original); Pl. Ex. G, H, J. Although this is not a ...

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