Blum v. Drucker

Jun 23, 1997
Versions:240 A.D.2d 609
659 N.Y.S.2d 298
1997 N.Y. App. Div. LEXIS 6878

In an action, inter alia, to recover damages for breach of contract, (1) the defendants Jeffrey P. Drucker, Gary L. Krupp, Jeffrey P. Drucker, M.D., P. C., Drucker & Krupp, Ltd., Drucker & Genuth, M.D.’s, P. C., Solomon Genuth, and South Shore Imaging Associates, appeal from so much of an order of the Supreme Court, Nassau County (DiNoto, J.), dated September 24, 1996, as denied that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against them and, (2) the plaintiffs cross-appeal, as limited by their brief, from so much of the same order as denied their motion to dismiss the affirmative defenses interposed by the appellants-respondents.

Ordered that the order is reversed insofar as appealed from, on the law, the branch of the appellants-respondents’ motion which was for summary judgment dismissing the complaint is granted, the complaint is dismissed insofar as asserted against them, and the action against the remaining defendant is severed; and it is further,

Ordered that the order is affirmed insofar as cross-appealed from; and it is further,

Ordered that the appellants-respondents are awarded one bill of costs.

The plaintiffs seek, inter alia, enforcement of a contract to pay profit distributions calculated, in part, on referrals they and other doctors made to the appellants-respondents’ practice. Since this agreement between the parties was illegal because it *610violated Federal Medicare law (42 USC § 1320a-7b), was against public policy, and was proscribed by regulations enacted by the Secretary of the United States Department of Health and Human Services (42 CFR 1001.952 [d]), it is unenforceable (see, Long Meadow Assocs. v City of Glen Cove, 203 AD2d 262; Little Princess Truck Rentals v Pergament Distribs., 143 AD2d 179; Nursing Home Consultants v Quantum Health Servs., 926 F Supp 835, affd 112 F3d 513; Modem Med. Labs. v Smith-Kline Beecham Clinical Labs., 1994 US Dist LEXIS 11525 [ND Ill]; Medical Dev. Network v Professional Respiratory Care/Home Med. Equip. Servs., 673 So 2d 565 [Fla]).

In light of this determination, the parties’ remaining contentions are academic. Mangano, P. J., Copertino, Florio and Mc-Ginity, JJ., concur.