178 A.D.2d 894 | N.Y. App. Div. | 1991
Appeal from a judgment of the Supreme Court (Kahn, J.), entered May 6, 1991 in Albany County, upon a decision of the court in favor of plaintiff.
On January 5, 1978 plaintiff signed an agreement with defendant whereby plaintiff agreed to provide dental services to defendant’s subscribers in accordance with the terms of the contracts between that entity and its subscribers (hereinafter the participating dentist agreement). Defendant agreed to pay plaintiff directly for professional services rendered in accordance with fee schedules determined by its board of directors. At approximately the same time, plaintiff signed a "confidential fee profile” certifying the usual charges for services common to his practice.
The parties apparently began to perform pursuant to their contractual agreement in January 1978 when plaintiff opened a dental office in Warren County. Plaintiff negotiated with
Ultimately, plaintiff commenced this action seeking, inter alia, recovery of the money withheld in satisfaction of the alleged overpayment, money withheld prospectively based on reduction of plaintiff’s fee schedule and punitive damages. Defendant answered and asserted affirmative defenses and counterclaims. Plaintiff replied and, after discovery, a nonjury trial was held. Supreme Court found for plaintiff and entered a judgment awarding plaintiff $125,553.95 in compensatory damages, $100,000 in punitive damages and dismissing defendant’s affirmative defenses and counterclaims. This appeal by defendant ensued.
In reviewing the findings of fact rendered by a court in a nonjury trial, we must weigh the conflicting testimony and inferences drawn therefrom '[i]f the credible evidence in the record indicates that a different finding from that of the trial court is not unreasonable” (Matter of Fasano v State of New York, 113 AD2d 885, 888 [emphasis supplied]). Here, defendant’s argument that it was justified in unilaterally reducing plaintiff’s confidential fee profile and recouping an alleged overpayment is premised upon its affirmative defenses and counterclaims that plaintiff breached the participating dentist agreement, thus entitling defendant to the action it undertook. On such claims, defendant bore the burden of proof. To such end, defendant argues (1) that plaintiff reported fees on his confidential fee profile that were not his "usual” fees because his usual fee was that contained in the union fee schedule, and (2) plaintiff’s usual fees were lower than those reported in the confidential fee profile because plaintiff chose to waive the co-payment due from subscribing patients.
This failure also vitiates defendant’s claim for damages based on its contention that plaintiff also breached the participating dentist agreement by waiving co-payments for some patients because proof of the fee charged the majority of plaintiff’s patients would be necessary to prove the degree to which his actual practice deviated therefrom. The contention is meritless in any event because the participating dentist agreement allows plaintiff to collect directly from the patient a co-payment of "not more than 20%” of the usual fee, manifesting a clear range of possible charges under 20%, including zero or no charge. Accordingly, we are constrained to find that Supreme Court did not err in awarding plaintiff compensatory damages in the amount of the recoupment.
We reach a different conclusion with respect to Supreme
Casey, Weiss, Levine and Harvey, JJ., concur. Ordered that judgment is modified, on the law, without costs, by reversing so much thereof as awarded punitive damages to plaintiff, and, as so modified, affirmed.