Empire Magnetic Imaging, Inc. v. Comprehensive Care of New York, P. C.

—In an action to recover damages for breach of contract and upon an account stated, the defendant appeals, as limited by its brief, from so much of (1) an order of the Supreme Court, Kings County (Bernstein, J.), dated June 9, 1998, as granted that branch of the plaintiff’s motion which was for partial summary judgment on its cause of action to recover on an account stated based upon services rendered by the plaintiff in administering magnetic resonance imaging tests and denied its cross motion to dismiss the complaint, and (2) a judgment of the same court, entered July 29, 1998, as, upon severing the plaintiff’s remaining causes of action for trial, is in favor of the plaintiff and against it in the principal sum $55,700. Ordered that the appeal from so much of the order as granted that branch of the plaintiff’s motion which was for summary judgment on its cause of action to recover on an account stated for magnetic resonance imaging tests it performed and denied that branch of its cross motion which was to dismiss that cause of action is dismissed; and it is further, Ordered that the order is affirmed insofar as reviewed; and it is further, Ordered that the judgment is reversed insofar as appealed from, that branch of the plaintiff’s motion which was for summary judgment on its cause of action to recover on an account stated for magnetic resonance imaging tests it performed is denied, and the order dated June 9, 1998, is modified accordingly; and it is further, Ordered that the appellant is awarded one bill of costs. The appeal from so much of the intermediate order as granted that branch of the plaintiff’s motion which was for summary judgment on its cause of action to recover on an ac [473] count stated for magnetic resonance imaging tests it performed and denied its cross motion to dismiss that cause of action must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 NY2d 241, 248). The issues raised on appeal from that portion of the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501 [a] [1]). The plaintiff Empire Magnetic Imaging, Inc. (hereinafter EMI), had a verbal agreement with the defendant Comprehensive Care of New York (hereinafter CCNY), to administer magnetic resonance imaging (hereinafter MRI) tests to clients CCNY referred to it. CCNY refused to pay EMI on the ground that EMI, which is not a licensed professional corporation, engaged in the unauthorized practice of medicine by allegedly employing radiologists to interpret the MRIs and split its fees with the radiologists. EMI commenced this action to recover, inter alia, on an account stated and was granted partial summary judgment on that cause of action. We reverse. There are disputed facts regarding the nature of the parties’ contractual obligations, and the extent and nature of the payments EMI claims are due from CCNY which preclude the granting of judgment as a matter of law to any party (see, CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562). While the dissent is correct in observing that certain invoices submitted in support of EMI’s motion for partial summary judgment are for services which do not include fees for readings by radiologists, this evidence hardly settles the question of the exact nature and extent of the parties’ oral agreement. For example, of the numerous weekly invoices submitted by the plaintiff, only 13 specifically state that they do not include fees for readings by radiologists. On those invoices, the fees for the MRI tests alone are listed as $200, $240, or $290, depending upon the type of MRI which was performed. Other invoices submitted by the plaintiff list fees incurred for MRI readings and correspond by date to the invoices for fees for imaging only. Those invoices recite fees for readings at rates varying from $65 to $75. Assuming that we were to combine each MRI fee for a particular patient with the corresponding reading fee, the fees should range from $265 to $370. However, those invoices in the record which actually combine the two types of fees, seek fees in the sums of $200, $300, and $350. Thus, there is no uniformity in the fee scale for the various types of MRI services EMI performed. Nor is there any clear indication [474] whether the reading fees charged in the combined invoices corresponded to reading fees listed in the invoices where those charges were billed separately. On this record, the exact fees charged for either MRI tests or readings by radiologists cannot be determined. Accordingly, it would be premature to grant partial summary judgment to the plaintiff on its cause of action to recover for the fees billed for the MRI services it rendered. Furthermore, the affidavits of the two radiologists who read the MRIs fail to clarify the issue. Neither affidavit offers specific information regarding the exact nature of the radiologists’ billing arrangements with the plaintiff, the duration of those arrangements, if any, or the number of readings each radiologist performed. Indeed, the affidavit of one of the radiologists that the combined billing arrangement was merely a matter of convenience, directly contradicts the defendant’s claim that there was no clear billing arrangement, thus raising, instead of resolving a question of fact. The unanswered questions as to the nature and extent of the parties’ oral agreement negate any claim by the plaintiff that it is entitled to judgment as a matter of law for the charges it billed for MRI testing only. This is not to say that the plaintiff will be precluded from recovering these charges at trial. We merely conclude that at this juncture there are questions of fact which preclude the granting of summary judgment. In light of our determination, it is unnecessary to reach the appellant’s remaining contentions. Joy, J. P., Sullivan and Luciano, JJ., concur.