United States District Court, S.D. New York
VICKY ORTIZ, individually and on behalf of all others similarly situated, Plaintiffs,
CIOX HEALTH LLC, as successor in interest of IOD INC., and THE NEW YORK AND PRESBYTERIAN HOSPITAL, Defendants.
the Plaintiff Lowell J. Sidney
Defendant CIOX Health LLC Kathryn A. Tiskus Hodgson Russ LLP,
Jodyann Galvin Aaron M. Saykin Hodgson Russ LLP
Defendant The New York and Presbyterian Hospital John Houston
Pope Epstein Becker & Green, P.C.
OPINION & ORDER
COTE UNITED STATES DISTRICT JUDGE
Vicky Ortiz brings this action against CIOX Health LLC
(“CIOX”) as successor in interest to IOD Inc.
(“IOD”), and against the New York and
Presbyterian Hospital (“NYPH”), named in the
complaint as Columbia Presbyterian Medical Center
(“CPMC”). Ortiz alleges that defendants violated a
provision of New York Public Health Law § 18, which
limits charges for copies of medical records to $0.75 per
page, when they charged $1.50 per page for copies of
Ortiz's medical records. Ortiz seeks money damages and
injunctive relief, for herself and on behalf of a proposed
statewide class. Defendants have moved to dismiss the First
Amended Complaint (“FAC”). CIOX has also moved to
strike several allegations in the FAC. For the following
reasons, the motions to dismiss are granted as to Counts 2,
3, 4, and 5 of the FAC and denied as to Count 1 of the FAC.
CIOX's motion to strike is denied as moot.
following facts are drawn from the FAC. In October 2016,
Ortiz, through her counsel Lowell J. Sidney, made a written
request to NYPH for medical records. Sidney informed NYPH
that under New York Public Health Law § 18(2)(e), it
could not charge more than $0.75 per page for copies of
medical records. At that time, NYPH contracted with IOD, a
predecessor in interest to CIOX, to provide copies of NYPH
medical records and to bill NYPH's patients for those
copies. Ortiz and Sidney were charged $1.50 per page for
Ortiz's medical records. Ortiz, through Sidney, paid the
bill even though it was in excess of the $0.75-per-page
2011 through 2017, CIOX and NYPH have processed over 1, 000
authorizations for medical records pursuant to Public Health
Law § 18. The defendants continue to charge individuals
similarly situated to Ortiz more than $0.75 per page for
copies of their medical records.
filed her original complaint in New York state court on
February 24, 2017. CIOX was served May 1 and on May 30
removed the action to federal court, asserting federal
jurisdiction under the Class Action Fairness Act. On June 22,
both defendants filed motions to dismiss the original
complaint. In response, Ortiz filed the FAC on July 14. On
August 3, CIOX filed a motion to dismiss and also moved to
strike allegations in the FAC that name CIOX employees. NYPH
filed a motion to dismiss on August 4. These motions became
fully submitted on August 25. On November 7, 2017, the matter
was reassigned to this Court.
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face to survive a motion to dismiss.” Nielsen v.
AECOM Tech. Corp., 762 F.3d 214, 218 (2d Cir. 2014)
(citation omitted). “[W]hile a court must accept all of
the allegations contained in a complaint as true, that tenet
is inapplicable to legal conclusions, and threadbare recitals
of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Balintulo
v. Ford Motor Co., 796 F.3d 160, 165 (2d Cir. 2015)
Jurisdiction over Ortiz's Individual Claims
argues that Ortiz lacks standing to pursue her claims because
the FAC fails to allege that she, rather than Sidney, was
injured. CIOX moves additionally to dismiss the claim for
injunctive relief for lack of standing.
establish Article III standing, Ortiz must demonstrate
“(1) injury-in-fact, which is a concrete and
particularized harm to a legally protected interest; (2)
causation in the form of a fairly traceable
connection between the asserted injury-in-fact and the
alleged actions of the defendant; and (3)
redressability, or a non-speculative likelihood that
the injury can be remedied by the requested relief.”
Allco Fin. Ltd. v. Klee, 861 F.3d 82, 95 (2d Cir.
2017) (citation omitted) (emphasis in original). “[A]
plaintiff must demonstrate standing separately for each form
of relief sought.” Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185
(2000). “Although past injuries may provide a basis for
standing to seek money damages, they do not confer standing
to seek injunctive relief unless the plaintiff can
demonstrate that she is likely to be harmed again in the
future in a similar way.” Nicosia v. Amazon.com,
Inc., 834 F.3d 220, 239 (2d Cir. 2016).
moving to dismiss for lack of jurisdiction, a defendant may
either challenge the pleading as facially deficient,
“based solely on the allegations of the complaint,
” or may “make a fact-based Rule 12(b)(1) motion,
proffering evidence beyond the Pleading.” Carter v.
HealthPort Tech., LLC, 822 F.3d 47, 56-57 (2d Cir.
2016). On a facial challenge to jurisdiction, a plaintiff has
“no evidentiary burden” and a court must
“presume that general allegations embrace those
specific facts that are necessary to support the
claim.” Id. at 56 (citation omitted) (emphasis
omitted). To oppose a fact-based Rule 12(b)(1) motion, a
plaintiff may either “come forward with evidence of
their own to controvert that presented by the
defendant” or “rely on the allegations in the
Pleading.” Id. at 57.
Carter, the Court of Appeals held that allegations
that plaintiffs paid a charge “through” their
counsel are “detailed factual allegations that the
plaintiffs were the principals, who acted through their
agents in requesting and paying for the records.”
Id. at 58. Such allegations sufficiently
demonstrated injury in fact at the motion to dismiss stage.
Id. at 59.
facially challenges the complaint on the ground that the FAC
alleges that Ortiz's attorney, Sidney, paid for the
copies of medical records, rather than Ortiz herself. The FAC
alleges that “Plaintiff, through her attorneys The Law
Office of Lowell J. Sidney, paid the bill which charged in
excess of seventy-five cents ($0.75) per page for her medical
records.” The FAC further alleges that “[a]s a
direct and proximate result of the foregoing, Plaintiff
suffered damages by, amongst other things, being caused to
pay fees for the medical records in excess of the legally