PC v. Excellus Bluecross Blueshield, Defendant. (2026)

This Decision and Order addresses a motion filed by defendant Excellus Bluecross Blueshield (hereinafter "Excellus") seeking to dismiss the case pursuant to CPLR §§ 3211 (a) (1) and (7). Plaintiff, Intraoperative Neurology Services, Inc. (hereinafter "Intraoperative"), opposes the motion.

BACKGROUND

To address concerns with the costs that insured patients could face from out-of-network providers, Congress enacted the No Suprises Act ("NSA"), 42 USC § 300gg-111 et seq., which went into effect January 1, 2022.¹ Under the NSA, an out of network provider submits its bill to a patient's insurer, which has 30 days to pay or deny the claim. The insurer is supposed to pay the provider an amount it deems appropriate or deny the claim. The NSA prohibits a provider from seeking payment from a patient beyond the initial amount paid by the insurer. If the insurer pays an amount that the provider feels is inadequate or rejects its claim, and the parties cannot negotiate a settlement of the claim, they must participate in independent dispute resolution ("IDR").

The IDR process is essentially binding arbitration. Each side submits position statements about the services at issue to a third-party evaluator, who then selects one of the proposals as the appropriate amount. Payment, if any is owed, is supposed to be made by the insurer within 30 days of the IDR decision. Importantly, the NSA provides that:

[a] determination of a certified IDR entity (I) shall be binding upon the parties involved, in the absence of a fraudulent claim or evidence of misrepresentation of facts presented to the IDR entity involved regarding such claim; and (II) shall not be subject to judicial review, except in a case described in any of paragraphs (1) through (4) of section 10(a) of Title 9 (42 USC § 300gg-111 [c] [5] [E] [i]).

As referred to in the NSA, the provisions of 9 USC § 10 (a) allow for arbitration awards to be vacated in court:

(1) where the award was procured by corruption, fraud, or undue means;

(2) where there was evident partiality or corruption in the arbitrators, or either of them;

(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or

(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

Turning to the present matter, Intraoperative is a provider of medical services in the field of clinical neurophysiology. Excellus provides health insurance coverage and administration within New York State. Intraoperative is an "out-of-network" provider as to Excellus, meaning that it does not have a contract with Excellus governing the reimbursement for its medical services rendered to Excellus's insureds.

Intraoperative rendered care to eight patients who were insured by Excellus in 2023 and 2024. Following said treatment, Intraoperative submitted claims totaling $230,949.60, on which Excellus made initial payments of $3,728.47. When the parties could not resolve the dispute through negotiation, Intraoperative initiated the IDR process under the NSA. Both sides accessed the IDR online portal and electronically accepted the website's terms of participation, including that the IDR determination was final and binding on both sides and awards would be paid pursuant to the NSA's provisions. From February through July 2025, IDR awards were issued in Intraoperative's favor amounting to $206,723.80. Intraoperative commenced the present action in February 2026 after Excellus failed to make any payment of these awards.

DISCUSSION

Before the court is Excellus's motion to dismiss plaintiff's complaint for failure to state a cause of action pursuant to CPLR §§ 3211 (a) (1) and (7). "A court may grant a motion seeking dismissal pursuant to CPLR 3211(a)(1) only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law. To constitute such conclusive documentary evidence, the evidence must be unambiguous" (Shephard v Friedlander, 195 AD3d 1191, 1193 [3d Dept 2021]).

In evaluating a motion under CPLR § 3211 (a) (7), it is well-settled that the court must accept the facts alleged in the complaint as true, accord plaintiff the benefit of every possible inference, and determine whether the facts as alleged fit within any cognizable legal theory (Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]). However, "[f]actual allegations that do not state a viable cause of action [or] consist of bare legal conclusions . . . are not entitled to such consideration [citation omitted]" (Skillgames, LLC v Brody, 1 AD3d 247, 250 [1st Dept 2003]). In addition, a plaintiff has no burden to produce evidence supporting the allegations in the complaint in order to oppose a motion to dismiss under CPLR § 3211(a) (7) (Scacchetti v Gannett Co., 90 AD2d 985, 986 [4th Dept 1982]).

It is against the foregoing standards that the court will assess defendant's motion to dismiss all of plaintiff's causes of action, which the court will address in seriatim.

I. Motion to dismiss all claims pursuant to the No Suprises Act

Excellus argues that the NSA preempts Intraoperative's attempt to enforce the IDR awards in state, or any, court. Specifically, Excellus posits that the language of 42 USC § 300gg-111 [c] [5] [E] [i] bars judicial review of IDR awards except for the limited grounds therein or in 9 USC § 10 (a), which provides similar, restricted bases for setting aside arbitration awards that were obtained through fraud or corruption. In support of its interpretation, Excellus cites various federal circuit and district court cases, which are neither binding on this court nor persuasive. Excellus's primary argument is that Intraoperative's claims are founded upon the NSA and according to the Fifth Circuit Court of Appeals, the NSA does not provide a private right of action or judicial review of IDR awards issued thereunder (Guardian Flight, L.L.C. v Health Care Service Corp., 140 F4th 271 [5th Cir 2025]).

While this court agrees that the NSA does not create a standalone private claim, and the decisions made by IDR arbitrators are not subject to judicial review, the court disagrees with Excellus's interpretation of the NSA. Specifically, the court finds that Intraoperative is not seeking judicial review of the IDR process or the propriety or sufficiency of the awards at issue. Rather, Intraoperative is seeking to enforce the awards it obtained through the IDR process by way of claims it has brought in state court, which the court finds are not expressly or implicitly prohibited by the NSA.

The court finds it significant that the NSA refers to "judicial review" in the context of fraud and corruption and refers to similar provisions of the federal arbitration statute under Title 9 (42 USC § 300gg-111 [c] [5] [E] [i]). This reference suggests that the IDR process established within the NSA was intended to be treated similarly to other binding arbitration procedures like Title 9, wherein court review of arbitration awards is limited to circumstances in which fraud or corruption has been demonstrated. Intraoperative's complaint does not allege such grounds or seek such relief. Rather, Intraoperative seeks to compel payment of awards arising from IDR, which is in line with arbitration awards under federal and state processes. For example, 9 USC § 13 provides that judgments obtained through federal arbitration:

shall be docketed as if it was rendered in an action. The judgment so entered shall have the same force and effect, in all respects, as, and be subject to all the provisions of law relating to, a judgment in an action; and it may be enforced as if it had been rendered in an action in the court in which it is entered (see also CPLR §§ 7510, 7511 and 7514).

The court finds its reasoning supported by the recently decided case of Agag v Cigna Health and Life Insurance Company (2026 WL 1021213, 2026 U.S. Dist. LEXIS 82515 [D. Conn, April 15, 2026, No. 3:25-cv-00498 (SRU)]). The Agag court held that a claimant seeking judicial enforcement of IDR awards made under the NSA does not constitute judicial review because it simply sought confirmation to "act in a purely ministerial way and enter as a judgment an earlier binding determination. . ." (Id. at *9). The Agar court further explained that the administrative oversight scheme envisioned by the NSA to ensure through audits and penalties that awards are paid is not the same as judicial enforcement:

To reiterate, an administrative 'remedy' that does not lead to the provider being paid is not a remedy at all. I reject a construction of the statute that bars judicial confirmation of an IDR award simply because there exists some semblance of an administrative scheme that does not ensure that the provider will be paid without the need to go to federal court (Id. at *13).

This court adopts the reasoning in Agar and thus denies Excellus's motion to dismiss based on its interpretation of the NSA under CPLR §§ 3211 (a) (1) or (7).

II. Motion to dismiss specific claims

Excellus also seeks to dismiss each of Intraoperative's causes of action based on documentary evidence and failure to state a cause of action. The court denies Excellus's motion as set forth below.

A. Breach of Express Contract

Excellus argues that Intraoperative's contract claim must fail because it is based on statutory obligations, as opposed to private agreements, and the online terms of the IDR process were not sufficiently spelled out (i.e., Excellus was compelled to "click here" to agree to the terms of participation). The court rejects Excellus's arguments and finds that whether the parties agreed to arbitrate Intraoperative's claims through the IDR process because of statutory compulsion or private agreement is of no moment. It is undisputed that both parties consented to the same terms and participated in the same process through entering the same online agreement. An agreement entered online is no less enforceable than one entered on paper (Moore v Microsoft Corp., 293 AD2d 587 [2d Dept. 2002]).² The court reads Intraoperative's complaint to assert that a contractual arrangement exists between the parties; plaintiff performed in accordance with the contract; defendant breached its contractual obligations; and defendant's breach resulted in damages to plaintiff (34—06 73, LLC v Seneca Insurance Company, 39 NY3d 44, 52 [2022]). Thus, the court finds that Intraoperative's claim for breach of express contract was sufficiently pled, and there is no conclusive documentary evidence that overwhelmingly rebuts Intraoperative's claim.

B. Breach of Implied Covenant of Good Faith and Fair Dealing

As Intraoperative's second cause of action sounds in contract, Excellus's motion to dismiss same is denied for the same reasons set forth above concerning the first cause of action for breach of express contract.

C. Declaratory Judgment

Excellus seeks to dismiss Intraoperative's claim for declaratory judgment on the grounds that such claim is prohibited by the NSA and duplicative of its other claims. The court denies Excellus's motion. As previously noted, this court finds that the NSA does not serve as a blanket prohibition on state law claims seeking enforcement of IDR awards obtained through the NSA. In addition, alternative pleadings are permitted in cases alleging contractual disputes (RB Upstate Communications LLC v R.J. Reuter, L.L.C., 93 AD3d 929, 933-934 [3d Dept 2012]). Finally, the court finds that Intraoperative has sufficiently stated a claim to determine the rights of the parties in this matter, which involves a justiciable controversy (CPLR § 3001; Morgenthau v Erlbaum, 59 NY2d 143, 52-153 [1983]).

D. Account Stated

Excellus moves to dismiss Intraoperative's fourth cause of action for account stated by arguing there was no agreement between the parties for the medical services at issue. The court rejects this argument, based on the following:

A prima facie account stated claim consists of three elements: (1) evidence of an account (a bill), based on a prior transaction between the parties, which was presented by one party to another; (2) the recipient accepted the account (bill) as correct, either expressly or implicitly by failing to object to the amount stated therein within a reasonable timeframe; and (3) evidence the recipient had promised to pay the amount stated (Santander Bank, N.A. v Rubin Trading Corporation, 68 Misc 3d 1013, 1020 [Sup Ct, Kings County 2020]).

The court finds that a broad reading of the complaint establishes that bills were presented by Intraoperative to Excellus for payment and that Excellus acknowledged those bills and consented to the payment thereof by participating in the IDR process. While there was not a direct contractual or debtor-creditor relationship between the parties, a sufficient relationship exists by way of Excellus's position as health insurer for its patients who sought treatment from Intraoperative in order for this claim to survive the motion to dismiss.

E. Quantum Meruit, Promissory Estoppel, and Unjust Enrichment

As noted above, alternative pleadings are allowed in cases premised upon contractual claims (RB Upstate Communications, 93 AD3d at 933-934). Accordingly, the court finds that Intraoperative's fifth cause of action for quantum meruit,³ sixth cause of action for promissory estoppel,⁴ and seventh cause of action for unjust enrichment ⁵ have been adequately pled as quasi contractual claims for purposes of defeating Excellus's motion to dismiss.

The court has considered the parties' remaining arguments, finding them without merit.

CONCLUSION

Based on the foregoing, defendant's motion to dismiss plaintiff's amended complaint pursuant to CPLR §§ 3211 (a) (1) and (7) is DENIED for the reasons set forth hereinabove. The court will issue a separate scheduling order for the parties to proceed with the litigation of this action.

This order constitutes the decision of the court.

Dated: August 24, 2026

HON. OLIVER N. BLAISE, III

Binghamton, New York

Supreme Court Justice

All papers submitted in connection with this motion, and the Decision and Order, have been electronically filed with the Broome County Clerk through the NYSCEF System

FOOTNOTES

1.   An out of network provider "refers to physicians, hospitals or other healthcare providers who do not participate in a health plan's provider network. This means that the provider has not signed a contract agreeing to accept the insurer's negotiated prices" (https://www.healthinsurance.org/glossary/out-of-network-out-of-plan/).

2.   The court finds it untenable for Excellus, a large and sophisticated corporate entity, to allege that it was unaware of the online terms to which it consented through a clickwrap agreement when that process was established pursuant to a federal statutory scheme to address an issue of which Excellus must have been abundantly aware (i.e., concerns with out-of-network billing).

3.   "To prevail on that cause of action, a party must prove (1) performance of services in good faith, (2) acceptance of the services by the person for whom they were rendered, (3) an expectation of compensation, and (4) the reasonable value of the services performed" (Malta Properties 1, LLC v Town of Malta, 143 AD3d 1142, 1144 [3d Dept 2016]).

4.   "In order to prevail on a theory of promissory estoppel, a party must establish "(1) a promise that is sufficiently clear and unambiguous; (2) reasonable reliance on the promise by a party; and (3) injury caused by the reliance" (Condor Funding, LLC v 176 Broadway Owners Corp., 147 AD3d 409, 411 [1st Dept 2017]).

5.   "The essential inquiry in any action for unjust enrichment ... is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered. A plaintiff must show that (1) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered" (Mandarin Trading Ltd. v Wildenstein, 16 NY3d 173, 182 [2011] [internal quotes & citations omitted]).

Oliver N. Blaise, III, J.