Appeal from an order of the District Court of Nassau County, First District (Sondra K. Pardes, J.), entered February 10, 2005. The order granted plaintiff's motion for summary judgment.

Order reversed without costs and plaintiff's motion for summary judgment denied.

Plaintiff brought the instant action to recover from defendants its outstanding fee of $656 for surgery-related anesthesiologist's services, and sought summary judgment for same. Defendants opposed the motion based upon an alleged misrepresentation by the anesthesiologist prior to surgery that he was a participating GHI provider and that his services would be paid under guidelines established for such providers.

A review of the record indicates that plaintiff made a prima facie showing that it rendered medical services to defendant Colleen Tierney, and that defendants, after having received a demand for payment, failed to pay plaintiff its outstanding bill for services. The burden then shifted to defendants to raise a material issue of fact requiring a trial (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). In our opinion, defendants' allegation that she was induced to enter into the contract by plaintiff's anesthesiologist misrepresenting himself as a participating GHI provider, raised a triable issue of fact since defendants' liability for payment was dependent upon plaintiff's status as a participating or non-participating GHI provider. Moreover, there was no basis in the record for the court below to have concluded that plaintiff was a participating provider. Accordingly, the court below erred in granting plaintiff's motion for summary judgment.

Rudolph, P.J., Tanenbaum and Lippman, JJ., concur.
Decision Date: June 9, 2006