Hishmeh v. Empire Healthchoice HMO, Inc. et al
| Shuriz Hishmeh, M.D. |
| Empire HealthChoice Assurance, Inc. and Empire Healthchoice HMO, Inc. |
| 2:2016cv02780 |
| June 1, 2016 |
| US District Court for the Eastern District of New York |
| Central Islip Office |
| Arlene R. Lindsay |
| Arthur D. Spatt |
| Labor: E.R.I.S.A. |
| 28 U.S.C. ยง 1446 Notice of Removal |
| None |
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Filing
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MEMORANDUM OF DECISION & ORDER - Based on the foregoing, the Court grants in part and denies in part Empire's 6 motion to dismiss the complaint. In particular, the portion of Empire's motion seeking to dismiss Dr. Hishmeh's claim ba sed on a violation of section 502 of ERISA is granted. However, to the extent that Empire seeks to dismiss the state law claims as preempted by the federal statute, its motion is denied. Further, in the absence of a viable federal claim, the Court de clines to consider whether the complaint plausibly alleges causes of action arising under New York state law. Further, to the extent that Dr. Hishmeh seeks leave to amend the complaint to add an ERISA claim, his cross-motion is denied as futile on th e ground that he lacks statutory standing as an assignee to bring a claim under section 502(a)(1)(B). Finally, having dismissed Dr. Hishmehs only potential federal claim; and there being no other apparent source of original subject matter jurisdicti on, the Court declines to exercise supplemental jurisdiction over the remaining state law causes of action, and respectfully directs the Clerk of the Court to remand this matter to the Nassau County Supreme Court for further proceedings. So Ordered by Judge Arthur D. Spatt on 2/17/2017. c/m to Supreme Court of the State of NY, County of Nassau (603197/2016). (Coleman, Laurie)
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