The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
NEW HORIZON SURGICAL CENTER,
LLC,
Plaintiff, MEMORANDUM & ORDER
v. 23-CV-6663 (HG)
LIBERTY MUTUAL INSURANCE
COMPANY,
Defendant.
HECTOR GONZALEZ, United States District Judge:
Plaintiff New Horizon Surgical Center commenced this action on July 17, 2023, in the
Supreme Court of New York, Nassau County, against Defendant Liberty Mutual Insurance
Company. ECF No. 1-1 (Plaintiff’s Complaint). Defendant removed the case to this Court on
September 7, 2023, based on diversity jurisdiction under 28 U.S.C. § 1332. ECF No. 1 (Notice
of Removal). Plaintiff seeks payment of outstanding medical bills, totaling $1,494,562.44 plus
interest in addition to costs and disbursements pursuant to § 13-g of the New York Workers’
Compensation Law (“WCL”) or, in the alternative, under a quasi-contract theory. ECF No. 1-1
at 7–9.1
On October 19, 2023, Defendant moved to dismiss the Complaint for failure to state a
claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See ECF No. 14-3
(Defendant’s Motion to Dismiss). Plaintiff opposed the motion. See ECF No. 16 (Plaintiff’s
Opposition). For the reasons set forth below, the Court grants in part and denies in part
Defendant’s motion.
1 The Court refers to pages assigned by the Electronic Case Files System (“ECF”).
BACKGROUND2
Plaintiff is a medical care provider located in New Jersey that provides medical treatment
to individuals who work in New York. ECF No. 1-1 at 4. Defendant is an insurance carrier
doing business in New York. Id. Between February 2017 and January 2019, Plaintiff provided
medical treatment and services totaling $1,604,288.01 to workers who sustained injuries or
illnesses during the course of their employment (“Injured Workers”). Id. at 3, 6, 13–14.
Defendant “provided, insured, or administered” insurance policies to these Injured Workers. Id.
at 6. The Injured Workers filed claims seeking coverage under the WCL for their work-related
injuries or illnesses, and the New York State Workers’ Compensation Board (the “WCB”)
assigned a discrete claim number for each individual’s claim. Id. Plaintiff billed Defendant for
the medical treatment and services it provided to the Injured Workers. Id. Defendant “did not
issue proper payment, make an objection to payment, or make a reasonable request for additional
information within 45 days of the submission of any of the [b]ills.” Id. To date, Defendant has
paid $109,725.57 toward Plaintiff’s total bill, “leaving a balance due of $1,494,562.44.” Id. at 7.
DISCUSSION
In an August 15, 2024, decision, Chief Judge Brodie stayed a worker’s compensation
case with substantially similar facts to this one pending the WCB’s adjudication. See Surgicore
Surgical Ctr., LLC v. Liberty Mut. Ins. Co., No. 23-cv-7462, 2024 WL 3835149 (E.D.N.Y. Aug.
15, 2024). For the reasons set forth below, I find the rationale underpinning Judge Brodie’s
2 For all allegations in Plaintiff’s Complaint, ECF No. 1-1, the Court is “required to treat
[Plaintiff’s] factual allegations as true, drawing all reasonable inferences in favor of Plaintiff[] to
the extent that the inferences are plausibly supported by allegations of fact.” In re Hain Celestial
Grp., Inc. Sec. Litig., 20 F.4th 131, 133 (2d Cir. 2021). The Court therefore “recite[s] the
substance of the allegations as if they represented true facts, with the understanding that these are
not findings of the [C]ourt, as we have no way of knowing at this stage what are the true
facts.” Id.
well-reasoned decision applicable to this case, and therefore conclude as she did that a stay is
warranted here.
As in Surgicore, Defendant argues that this case should be dismissed because the WCB
has exclusive jurisdiction over this dispute. ECF No. 14-3 at 5; Surgicore, 2024 WL 3835149, at
*4. Plaintiff counters that it has no administrative remedies available under the WCL because
the 2019 amendment of WCL § 13-g—which now permits out-of-state providers to seek
recourse from the WCB—does not apply retroactively. See ECF No. 16 at 8–9. The same
argument was made in Surgicore, and Judge Brodie concluded that WCL § 13-g, as amended
effective January 1, 2020, does apply retroactively because the WCL is “remedial in nature” and
“the 2019 amendments do not create new substantive rights.” Surgicore, 2024 WL 3835149, at
*5. I adopt the same analysis here.
Plaintiff also argues, as in Surgicore, that the doctrine of primary jurisdiction is not
triggered because “[t]here is no concurrent jurisdiction between the WCB and the [Court] in this
matter, because the WCB never had the power to permit out-of-state [medical care providers] to
request recourse through the WCB’s [administrative] processes for disputed out-of-state [medical
care providers’] bills for dates of service prior to January 1, 2020.” ECF No. 16 at 20; Surgicore,
2024 WL 3835149, at *5. Here again, I find Judge Brodie’s reasoning in Surgicore persuasive
on this point, and adopt her holding that the primary jurisdiction doctrine should apply in this
case and that “the [WCB] should have the ‘initial decisionmaking responsibility’ in this action”
because: (a) the WCB has technical expertise in this area of law; (b) the WCB’s expertise would
materially aid in resolving factual questions; (c) it is unclear whether there is a danger of
inconsistent rulings between the WCB and this Court; (d) there is a concern that this Court will
resolve Plaintiff’s claims in a way that would work at a cross-purpose with the WCB; and (e) the
advantages of having the WCB adjudicate the claims outweigh any potential cost of delay in the
action. See Surgicore, 2024 WL 3835149, at *5–9. Accordingly, I stay the action until the WCB
has an opportunity to adjudicate the claims raised in the Complaint.
CONCLUSION
For the reasons discussed above, the Court grants in part and denies in part Defendant’s
motion. The Court denies Defendant’s motion to dismiss for failure to state a claim, but grants
Defendant’s motion to stay the action pending the New York Workers’ Compensation Board’s
adjudication of the issues raised in this action. The parties are directed to provide a status update
on or before December 18, 2024.
SO ORDERED.
/s/ Hector Gonzalez
HECTOR GONZALEZ
United States District Judge
Dated: Brooklyn, New York
September 19, 2024