Klein v Chow

[*1] Klein v Chow 2020 NY Slip Op 50536(U) Decided on May 8, 2020 Appellate Term, First 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 May 8, 2020
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Cooper, J.P., Edmead, Torres, JJ.
570550/19

Ariella Klein, Plaintiff-Appellant,

against

Daniel Chow, Daniel W. Chow, DDS, MAGD, FIAO, PLLC, Defendants-Respondents.

Plaintiff appeals from (1) a judgment of the Small Claims Part of the Civil Court of the City of New York, New York County (Dakota D. Ramseur, J.), entered on or about March 29, 2019, after trial, in favor of defendant dismissing the action, and (2) an order (same court and Judge), entered July 30, 2019, which denied her motion, in effect, pursuant to CPLR 4404 to set aside the judgment.

Per Curiam.

Judgment (Dakota D. Ramseur, J.), entered on or about March 29, 2019, and order (Dakota D. Ramseur, J.), entered July 30, 2019, affirmed, without costs.

Although plaintiff-appellant alleges that the court erred in finding that an accord and satisfaction was created when she cashed the $3,425.00 check tendered by defendant, the record on appeal prepared by plaintiff contains neither the check nor the June 6, 2018 letter defendant sent with it, both of which were marked as exhibits and admitted into evidence. Inasmuch as the record on appeal is incomplete, we are unable to review this contention (see CPLR 5526; CCA 1704; see also Borbon v Pescoran, 106 AD3d 594 [2013]).

With regard to plaintiff's other contentions, our review of the record satisfies us that the dismissal of plaintiff's claim accomplished substantial justice between the parties consistent with substantive law principles (see CCA 1804, 1807). A fair interpretation of the evidence supports the finding that plaintiff failed to establish that there was any agreement between the parties concerning the billing codes defendant dentist would use on plaintiff patient's insurance claim forms. Plaintiff's remaining claims, sounding in tort, were properly dismissed, since this is essentially a contract dispute between a dentist and patient regarding fees for services (see Clark—Fitzpatrick, Inc. v Long Is. R.R. Co., 70 NY2d 382, 390 [1987]).

We have considered plaintiff's remaining arguments and find them unavailing.

All concur.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Clerk of the Court

Decision Date: May 8, 2020