Lopez v Novy

[*1] Lopez v Novy 2009 NY Slip Op 52359(U) [25 Misc 3d 1231(A)] Decided on November 20, 2009 Mt. Vernon City Ct. Seiden, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 20, 2009
Mt. Vernon City Ct.

Bernitha Lopez, Plaintiff,

against

Michael Novy, DDS, Defendant.



07-5192



Brian Johnson, Esq.

Attorney for Plaintiff

669 North Terrace Avenue, Suite 48

Mount Vernon, New York 10552

Christopher Caiazzo, Esq.

Law Office of Lori D. Fishman

Attorney for Defendant

303 South Broadway, Suite 435

Tarrytown, New York 10591

Adam Seiden, J.

Plaintiff brought this proceeding to recover three thousand seven hundred and forty dollars ($3,740.00) alleging a failure by defendant to provide proper service and breach of an agreement. It is uncontested that the plaintiff went to defendant's dental office to receive dental services. It is also uncontested that plaintiff was covered under the 1199 dental insurance plan and defendant was a listed provider under the said plan.

The proposed dental work called for three thousand two hundred dollars ($3,200.00) worth of covered dental work. The plaintiff's coverage was for up to three thousand dollars ($3,000.00). For some reason, plaintiff, who went to defendant's office based upon the fact that defendant was a plan provider, was sent to an associate dentist for her work. The associate dentist was not a listed plan provider. Defendant's office had plaintiff apply for "credit care" - in essence a loan to pay for the work that could have been covered under her insurance plan payments had defendant done the work. The amount borrowed was three thousand two hundred dollars ($3,200.00).The dental participation agreement signed by defendant states:

6. ". . . Dentist agrees that he shall not bill members for services provided to

them."

6.1 "Dentist agrees that he/she shall not charge, collect a deposit from, seek

compensation, remuneration or reimbursement from, or have any recourseagainst members for covered services..."

General Business Law § 349(a) declares unlawful any deceptive acts or

practices in the conduct of any business. To prevail on a deceptive trade claim, a

plaintiff must show that: (1) the defendant's deceptive acts were directed at consumers;

(2) the acts were misleading in a material way; and (3) the plaintiff has been injured as

a result of defendant's action (U-Neek, Inc. v Wal_Mart Stores, Inc., 147 F. Supp. 2d

158 (Dist Ct. S.D.NY 2001); Harary v Allstate Ins. Co., 983 F. Supp. 95 (Dist. Ct.

E.D.NY 1997)).

Here, the Court finds that the defendant and/or his agents engaged in a [*2]

deceptive business practice by having plaintiff apply for a loan for dental work, though

defendant was a plan participant. Plaintiff credibly testified that she went to defendant's

office because he was a plan provider. She also credibly testified that she

communicated her coverage and desire to use it to defendant and/or defendant's staff.

For the defendant's office to allow a non plan provider to provide the services is

improper under these circumstances.

Judgment to plaintiff in the sum of three thousand dollars ($3,000.00) which is

the amount of coverage plaintiff would have had plus interest from June 5, 2007 the

date of the loan.

The above result does substantial justice between the parties.

The above constitutes the Decision and Order of the Court.

Dated: Mount Vernon, New York

November 20, 2009

HON. ADAM SEIDEN

Associate City Court of Mount Vernon