FOR MED MEDICAL GROUP v. COMPREHENSIVE HEALTH CARE (2012)

In an action, inter alia, for an accounting, the defendants Comprehensive Health Care, P.C., Global Medical Care, P.C., United Medical Care, P.C., Complete Medical Care, P.C., and Oxford Health Plans, Inc., appeal from an order of the Supreme Court, Queens County (Schulman, J.), dated December 6, 2011, which denied the motion of the defendants Comprehensive Health Care, P.C., Global Medical Care, P.C., United Medical Care, P.C., and Complete Medical Care, P.C., in effect, for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the appeal by the defendant Oxford Health Plans, Inc ., is dismissed, on the ground that it is not aggrieved by the order appealed from (see CPLR 5511), and, in any event, that appeal has been abandoned (see 22 NYCRR 670.8[e] ); and it is further,

ORDERED that the order is affirmed on the appeal by the defendants Comprehensive Health Care, P.C., Global Medical Care, P.C ., United Medical Care, P.C., and Complete Medical Care, P.C.; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

The plaintiff commenced this action against, among others, the defendants Comprehensive Health Care, P.C., Global Medical Care, P.C ., United Medical Care, P.C., and Complete Medical Care, P.C. (hereinafter collectively the appellants), seeking, inter alia, an accounting. The appellants moved, in effect, for summary judgment dismissing the complaint insofar as asserted against them.

Although the appellants established their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them, in opposition, the plaintiff demonstrated the existence of triable issues of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324). Accordingly, the Supreme Court properly denied the appellants' motion, in effect, for summary judgment dismissing the complaint insofar as asserted against them.

The appellants' contention regarding the Stark Act (see 42 USC § 1395 et seq.) is not properly before this Court.