Kohli v. Indep. Recovery Res., Inc.
| Decision Date | 31 March 2021 |
| Docket Number | 17-cv-03154 (DLI)(RLM) |
| Parties | RITIKA KOHLI, Plaintiff, v. INDEPENDENT RECOVERY RESOURCES, INC. and REPRODUCTIVE SPECIALISTS OF NEW YORK, LLP, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
On May 24, 2017, Plaintiff Ritika Kohli ("Plaintiff") commenced this action against Independent Recovery Resources, Inc. ("IRR"), Anita Manghisi ("Manghisi"), and Reproductive Specialists of New York, LLP ("RSNY") (collectively, "Defendants"), asserting claims under the Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq. ("FDCPA") and Fair Credit Reporting Act, 15 U.S.C. § 1681 et seq. ("FCRA"), as well as New York state law claims for breach of contract, gross negligence, and violation of New York General Business Law § 349 ("GBL § 349"). See, generally, Compl., Docket ("Dkt.") Entry No. 1. Before the Court are Plaintiff's and RSNY's cross-motions for summary judgment pursuant to Federal Rule of Civil Procedure 56.
Plaintiff moved for summary judgment on the only remaining claims against RSNY, which are state law claims for breach of contract, gross negligence, and violation of GBL § 349. See, Notice of Mot. for Summ. J., Dkt. Entry No. 108; Mem. of Law in Supp. of Mot. for Summ. J. as to Claims Alleged Against Reproductive Specialists of New York, LLP ("Pl. Mem."), Dkt. Entry No. 108-1; Plaintiff's Statement of Uncontested Facts Pursuant to Local Rule 56.1(a) ("Pl. 56.1"), Dkt. Entry No. 108-2; Pl. Exs. 1-21, Dkt. Entry Nos. 108-3 to 108-23. RSNY opposed Plaintiff's motion. See, Mem. of Law in Opp'n to Pl.'s Mot. for Summ. J. ("Def. Opp'n"), Dkt. Entry No. 109; Def. Reproductive Specialists of New York LLP's Counter-Statement of Material Facts ("Def. CSOF 56.1"), Dkt. Entry No. 109-1; Exs. 1-2, Dkt. Entry Nos. 109-2 to 109-3. Plaintiff replied. See, Mem. of Law in Reply to Def.'s Opp'n to Pl.'s Mot. for Summ. J. ("Pl. Reply"), Dkt. Entry No. 110.
RSNY cross-moved for summary judgment against Plaintiff. See, Notice of Mot., Dkt. Entry No. 96; Mem. of Law in Supp. of Reproductive Specialists of New York, LLP's Mot. for Summ. J. ("RSNY Mem."), Dkt. Entry No. 97; Def. Reproductive Specialists of New York, LLP's Local Rule 56.1 Statement ("RSNY 56.1"), Dkt. Entry No. 98; Aff. of Emily Harper ("Harper Aff."), Dkt. Entry No. 99; Aff. of Michael Pagliuca ("Pagliuca Aff."), Dkt. Entry No. 100; Aff. of Patricia Hennessy ("Hennessy Aff."), Dkt. Entry No. 101; Letter correcting filer information on ECF Doc. No. 96, Dkt. Entry No. 113. Plaintiff opposed RSNY's motion. See, Mem. of Law in Opp'n to Mot. for Summ. J. ("Pl. Opp'n"), Dkt. Entry No. 105; Resp. to Def's. Local Rule 56.1(a) Statement of Purportedly Undisputed Facts ("Pl. CSOF 56.1"), Dkt. Entry No. 107. RSNY replied. See, Reply Mem. of Law in Supp. of Reproductive Specialists of New York, LLP's Mot. for Summ. J. ("Def. Reply"), Dkt. Entry No. 103.
For the reasons set forth below, Plaintiff's motion is denied in its entirety and RSNY's motion is granted in its entirety. Accordingly, Plaintiff's claims against RSNY are dismissed.
The following facts are taken from the parties' Local Civil Rule 56.1(a) statements, affidavits, and exhibits. Unless otherwise noted, these facts are not in dispute. As it must, the Court has considered only facts recited by Plaintiff and RSNY in their respective Rule 56.1statements and responses that are established by admissible evidence and disregarded conclusory allegations and legal arguments contained therein. See, Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) () (internal quotation marks and citations omitted).
RSNY is a fertility clinic that, among other services, provides embryo storage. Def. 56.1, ¶ 1; Pl. CSOF 56.1, ¶ 1. In 2007, Plaintiff and her then husband, Harpel Hira ("Hira"), sought fertility treatment from RSNY. Pl. 56.1, ¶ 1; Def. CSOF 56.1, ¶ 1. Prior to receiving treatment, Plaintiff and Hira executed a document entitled "Consent to Cryopreserve Embryos and Decisions as to Future Dispositions" (the "Consent Agreement"). Def. 56.1, ¶ 2; Pl. CSOF 56.1, ¶ 2; Pl. 56.1, ¶ 2; Def. CSOF 56.1, ¶ 2. The Consent Agreement governs the terms of the preservation and disposition of Plaintiff's and Hira's cryopreserved embryos (the "Embryos").
As relevant here, the Consent Agreement provides that: (1) after the Embryos have been stored for five years, Plaintiff and Hira are "required to contact [RSNY]" regarding their final disposition and, in the event that the Embryos have been stored for five years, "it is the policy of [RSNY] that the disposition of the [Embryos] should occur at that time[]"; (2) in the event of divorce or permanent separation, the Embryos "shall . . . [b]e discarded according to laboratory procedure"; (3) Plaintiff and Hira agree to "promptly notify" RSNY in writing of any change of address as long as the Embryos are in storage; and (4) Plaintiff and Hira agree that, if they fail to pay storage fees, RSNY "shall" attempt to contact them and, if such contact cannot be made, RSNY "is authorized" to dispose of the Embryos. Harper Aff., Ex. A at Ex. 2 (); Def. 56.1, ¶ 2; Pl. CSOF 56.1, ¶ 2. The Consent Agreement further provides that it "will govern evenin the face of future changes in circumstances (unless [Plaintiff and Hira] mutually agree and change [their] decisions . . . in writing)." Harper Aff., Ex. A at Ex. 2; Pl. 56.1, ¶ 5; Def. CSOF 56.1, ¶ 5.
In August 2008, Hira attempted to stab Plaintiff. Pl. 56.1, ¶ 10; Def. CSOF 56.1, ¶ 10. When Plaintiff's mother rushed to Plaintiff's defense, Hira stabbed and killed her. Id. Subsequently, Hira was convicted for the murder of Plaintiff's mother. Def. 56.1, ¶ 3; Pl. CSOF 56.1, ¶ 3.
Following this tragedy, Plaintiff no longer wished to preserve the Embryos. Pl. 56.1, ¶ 12. Plaintiff claims that, sometime in 2008, she called RSNY to ask that the Embryos be discarded and that she no longer be billed for storage fees. Id. at ¶¶ 11-12, 16. According to Plaintiff, she spoke to an unidentified RSNY representative who advised her that RSNY was aware of the murder and no longer would bill her for the storage of the Embryos. Id. at ¶ 16. The RSNY representative further informed Plaintiff that "she may receive something in writing from RSNY confirming that the [E]mbryos would be discarded, and even if she did not receive anything in writing, RSNY . . . would note her account." Id. at ¶ 17. RSNY disputes Plaintiff's account of the 2008 phone call and notes that neither RSNY nor Plaintiff have a record of this phone call. Def. CSOF 56.1, ¶ 11. RSNY further notes that, per industry standards and RSNY protocol, embryos will not be discarded absent contemporaneous written authorization and, therefore, no one at RSNY would have had the authority to tell a patient that her embryos would be destroyed based on a verbal request. Id. at ¶¶ 11-12.
The last payment for storage of the Embryos that RSNY received was on May 21, 2008 in the amount of $130.00. Def. 56.1, ¶ 32; Pl. CSOF 56.1, ¶ 32; See also, Compl. ¶ 59. RSNY sent Plaintiff six invoices between May 28, 2009 and July 15, 2015. Pl. 56.1, ¶¶ 18-23; Def. CSOF56.1, ¶¶ 18-23. These invoices were sent to Plaintiff's address in Richmond, California, where she lived from August 2008 to October 2008. Pl. 56.1, ¶¶ 18-23, 25; Def. CSOF 56.1, ¶¶ 18-23, 25. Plaintiff never received them. Pl. 56.1, ¶ 26; Def. CSOF 56.1, ¶ 26.
In 2009, 2014, and 2015, Defendant IRR, with whom RSNY contracted to collect debts owed to RSNY, reported Plaintiff's RSNY debt to credit reporting agencies TransUnion and Experian. See, Def. Opp'n, Ex. 2; Pl. 56.1, ¶¶ 28-30, 72; Def. CSOF 56.1, ¶¶ 28-30, 72; Pl. Ex. 6, Dkt. Entry No. 108-8 (). On May 5, 2016, Plaintiff e-mailed IRR to dispute the RSNY debt. Pl. Ex. 8, Dkt. Entry No. 108-10 (); Pl. 56.1, ¶ 35; Def. CSOF 56.1, ¶ 35. In response to Plaintiff's e-mail, IRR provided a settlement proposal, which offered to reduce the amount owed from $1,950.00 to $1,365.00. Pl. Ex. 10, Dkt. Entry No. 108-12 (IRR Settlement Proposal dated May 25, 2016); Pl. 56.1, ¶ 36; Def. CSOF 56.1, ¶ 36. Subsequently, Plaintiff contracted with Debt Solutions Network ("DSN") to dispute the RSNY debt and have it removed from her credit report. Pl. Ex. 12, Dkt. Entry No. 108-14 (Debt Solutions Network Agreement dated June 7, 2016); Pl. 56.1, ¶ 40; Def. CSOF 56.1, ¶ 40. DSN submitted Plaintiff's dispute to IRR on June 10, 2016. Pl. 56.1, ¶ 41; Def. CSOF 56.1, ¶ 41.
In July 2016, Plaintiff called RSNY and spoke to Cheryl Luckey ("Luckey"), RSNY's primary Collections Specialist who managed billing for embryo storage. Pl. 56.1, ¶¶ 37, 50, 84; Def. CSOF 56.1, ¶¶ 37, 50, 84. As a result of Plaintiff's conversation with Luckey, RSNY stopped billing Plaintiff for future charges, but did not waive charges made before July 2016. Def. 56.1, ¶ 4; Pl. CSOF 56.1, ¶ 4; Pl. 56.1, ¶ 71; Def. CSOF 56.1, ¶ 71. Although RSNY could have instructedIRR to cease its attempts to collect the debt incurred prior to July 2016, it did not do so. Pl. 56.1, ¶¶ 74-76; Def. CSOF 56.1, ¶¶ 74-76.
On May 24, 2017, Plaintiff commenced this action, asserting claims under New York state law, the FDCPA, and the FCRA against Defendant IRR and its Director of Operations, Manghisi, and New York state law claims against RSNY. See, generally, Compl. RSNY moved to dismiss Plaintiff's claims against it and, on November 30, 2017, the...
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