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Supreme Court, Appellate Division, First Department, New York.

OXFORD HEALTH PLANS (NY), INC., Plaintiff-Respondent, v. ASOCIACIONES DOMINICANAS, Defendant-Appellant.

Decided: August 08, 2002

ANDRIAS, J.P., ROSENBERGER, WALLACH, RUBIN and GONZALEZ, JJ. Ross S. Katz, for Plaintiff-Respondent. Alan E. Wolin, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Marilyn Shafer, J.), entered July 23, 2001, after a non-jury trial, in favor of plaintiff and against defendant in the sum of $41,392.12, unanimously reversed, on the law, without costs, the judgment vacated and the complaint dismissed.   The Clerk is directed to enter judgment in favor of defendant dismissing the complaint.

The trial court found that, although defendant not-for-profit organization had cancelled its group health insurance policy with plaintiff in January 1997, defendant's employees, including its executive officer who cancelled the insurance, continued to use the health insurance.   As a result, it held, plaintiff's negligence in not notifying the relevant health care providers of the cancellation cannot be a basis for denying plaintiff the value of the services provided to defendant.   However, while we agree that plaintiff would seemingly be entitled to recoup its payments mistakenly made on behalf of defendant's employees from the payee health providers or individual employees to whom such payments were made (see “Right of Insurer Under Health or Hospitalization Policy to Restitution of Payments Made Under Mistake,” 79 A.L.R.3d 1113;  cf., Martin v. Blue Cross and Blue Shield of Central New York, 167 A.D.2d 917, 561 N.Y.S.2d 997), it has no direct claim on a theory of unjust enrichment against defendant association, which had notified its employees of the cancellation and instructed them to submit any medical bills directly to the association, which would pay them as a self-insurer (compare, Blue Cross of Central New York v. Wheeler, 93 A.D.2d 995, 461 N.Y.S.2d 624).