In this action to recover fees for diagnostic testing services, defendant Antonio Garcia, M.D. moves for summary judgment dismissing the action.

Plaintiff Interscience Diagnostic Laboratories, Inc. operates a laboratory that analyzes human samples, such as blood, urine and tissue for medical diagnosis. Defendant is a medical doctor engaged in the practice of medicine.

Plaintiff commenced this lawsuit alleging causes of action for breach of contract, account stated and unjust enrichment, claiming that from September 7, 2001 through January 22, 2007, it analyzed numerous blood, urine and tissue samples at defendant's request and that it is owed outstanding fees from the defendant in the amount of $13,136.03.

Defendant maintains that he is not responsible for payment of these fees. In his sworn affidavit, defendant averred that along with every clinical sample, which had been sent to the plaintiff, he provided the plaintiff with the name of the patient who gave the sample, the patient's [*2]address and the name of the patient's insurance carrier. He further averred that plaintiff always directly billed the patient's insurance carrier for its services, and that if a particular test was not covered by a patient's insurance, plaintiff would then directly bill that patient. Defendant asserts that prior to the institution of this lawsuit, plaintiff never directly billed defendant nor sought payment from the defendant for any of the services plaintiff rendered to defendant's patients. Plaintiff does not dispute any of these facts.

Defendant raises two principal arguments in support of its motion. First, defendant argues that the action is barred by Public Health Law § 586[1]. Second, defendant argues that since plaintiff was well aware that the defendant was acting as an agent for known principals, i.e. the defendant's patients, the defendant cannot be held personally liable for the outstanding laboratory testing fees.

Public Health Law § 586[1] (formally General Business Law § 394-e) provides that "[i]t shall be unlawful for any purveyor of clinical laboratory services, directly or indirectly, through any person, firm, corporation or association or its officers or agents, to bill or receive payment, reimbursement, compensation or fee from any person other than the recipient of the services, such recipient being the person upon whom the clinical services have been or will be rendered." Simply stated, the statute prohibits a purveyor of clinical laboratory services from billing or receiving payment from any person other than the recipient of the services ( see Metpath, Inc. v. Brown, 179 AD2d 113, 115 [1st Dep't 1992] ).

To prevail on a motion for summary judgment, the movant must make out a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). Here, defendant established by admissible evidence that he was not the recipient of the clinical laboratory services for which plaintiff is seeking payment. Defendant therefore established that the alleged contract pursuant to which plaintiff claims it is entitled to payment for its services is void and unenforceable pursuant to Public Health Law § 586[1]. It is well settled that a contract which violates a prohibitory statute or which cannot be performed without violation of that statute is illegal, void, and unenforceable (see Scotto v. Mei, 219 AD2d 181,183 [1st Dep't 1996]; Robitzek v. Reliance Intercontinental Corp., 7 AD2d 407, 409 [1st Dep't 1959]; affd. 7 NY2d 1041 [1960] ) and "such an illegal contract can not give rise to a viable cause of action" (Scotto, at 183, citing Carmine v. Murphy, 285 NY 413, 416 [1941] ). Clearly, defendant made out a prima facie showing of its entitlement to judgment as a matter of law dismissing plaintiff's cause of action for breach of contract.

Defendant also made out a prima facie showing of its entitlement to judgment as a matter of law dismissing the causes of action for account stated and unjust enrichment since the relief plaintiff seeks in those causes of action is expressly prohibited by Public Health Law § 586[1]. [*3]

Since defendant demonstrated its prima facie entitlement to judgment as a matter of law dismissing the entire action, the burden shifted to the plaintiff to produce admissible proof sufficient to raise a triable issue of fact ( see Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]; Bethlehem Steel Corp. v. Solow, 51 NY2d 870, 872 [1980] ). Plaintiff failed to meet this burden.

Plaintiff's contention that the motion should be denied pending further discovery is without merit. Plaintiff surmises that further discovery might reveal that the defendant was sending the blood, urine and tissue samples to plaintiff for analysis in connection with a medical research study. While Public Health Law § 586[1] would not bar the action if this were the case (see Metpath, Inc., 179 AD2d at 114), defendant's affidavit effectively ruled out this possibility, and nothing contained in plaintiff's submissions suggests that defendant was involved in a medical research study. "Although determination of a summary judgment motion may be delayed to allow for further discovery where evidence necessary to oppose the motion is unavailable to the opponent (see CPLR 3212[f] ), [a] determination of summary judgment cannot be avoided by a claimed need for discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence'" (Lambert v. Bracco, 18 AD3d 619, 620 [2nd Dep't 2005], quoting Ruttura & Sons Constr. Co. v. Petrocelli Constr., 257 AD2d 614, 615 [2nd Dep't 1999] ). Plaintiff established no such evidentiary basis, and its mere hope that further discovery will reveal the existence of triable issues of fact is insufficient to delay determination on the issue of summary judgment ( id.).

Since the within action is barred by Public Health Law § 586[1], the court need not address defendant's second legal argument.

For all of the above reasons, it is hereby

ORDERED that defendant's motion for summary judgment is GRANTED and the within action is hereby DISMISSED.

This constitutes the decision and order of the court.

Dated: April 7, 2009______________________________

PETER P. SWEENEY

Civil Court Judge