Appeal from a judgment of the Civil Court of the City of New York, Queens County (Jodi Orlow, J.), entered April 26, 2010.
Podolsky v Kamran V. Nia, M.D., P.C.
Appellate Term, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Decided on August 27, 2012
PRESENT: PESCE, P.J., RIOS and SOLOMON, JJ
The judgment, after a non-jury trial, awarded plaintiff the principal sum of $5,000 and dismissed defendant's counterclaim.
ORDERED that the judgment is modified by providing that plaintiff's cause of action is dismissed; as so modified, the judgment is affirmed, without costs.
Plaintiff commenced this small claims action to recover the sum of $5,000, alleging that defendant owed him that sum pursuant to an agreement to generate pathology reports for biopsy specimens submitted to him by defendant. Defendant interposed a counterclaim to recover the sum of $5,000 for misrepresentation and fraudulent overcharging.
At a non-jury trial, plaintiff testified that his contract with defendant had been negotiated through plaintiff's agent, Dr. Messina, and its terms had never been written down. Plaintiff conceded that he had never spoken to defendant with respect to the negotiation of the contract. Plaintiff stated that, pursuant to the contract, over the course of three years, he had generated pathology slides for biopsy specimens submitted to him by defendant; that, throughout the course of their dealings, he had charged defendant per biopsy, not per patient; and that defendant had paid accordingly. Defendant stopped paying him in May 2009, and there is now due and owing the sum of $6,050. Dr. Messina, the agent who had negotiated the agreement with defendant on behalf of plaintiff, testified that he had orally agreed with defendant that plaintiff would analyze defendant's slides and that plaintiff would charge defendant on a per "case," i.e., per patient, not per specimen, basis. Defendant testified that the agreement was that he would pay per patient and that, over the course of the three years, he had been unaware that plaintiff had billed him per specimen, rather than per patient, as plaintiff's bills were confusing, and that he had therefore erroneously paid plaintiff per specimen. Defendant estimated that he had overpaid plaintiff by approximately $19,000. He thus began withholding payment against that balance in May 2009.
Following the trial, the Civil Court awarded plaintiff the principal sum of $5,000 and dismissed defendant's counterclaim.
At the outset, we note that defendant's contention based on the statute of frauds was waived by defendant's failure to assert this claim in the trial court (Griffith Energy Inc. v Evans, 85 AD3d 1564 ).
As plaintiff was not a party to the negotiations between plaintiff's agent, Dr. Messina, and defendant, plaintiff could not competently testify as to its terms. The testimony of both Messina and defendant established that the agreement was for payment per patient, not per specimen. Thus, plaintiff should not have been allowed to recover upon his claim, as he had overbilled defendant by billing per specimen.
However, as defendant did not exercise diligence in discovering the overbilling, and as plaintiff was prejudiced by defendant's lack of diligence since plaintiff continued to perform pursuant to what he claimed he believed was the agreement, defendant should not be entitled to recover back the money paid on the ground of unjust enrichment (see generally Citicorp N. Am., Inc. v Fifth ...