Goldman v. Garofalo

71 A.D.2d 650, 418 N.Y.S.2d 803, 1979 N.Y. App. Div. LEXIS 12874

Opinions

—In an action to recover fees paid to the defendant Lakeville Medical Laboratories, Inc., for pap smear tests performed during a period when Lakeville had no license to perform such tests, the parties cross-appeal from an order of the Supreme Court, Nassau County, dated September 27, 1978, which (1) denied plaintiff’s motion for class action certification; and (2) denied the parties’ cross motions for summary judgment. Order, modified, on the law, by deleting therefrom the provision denying the defendants’ cross motion for summary judgment and adding thereto a provision granting said cross motion and dismissing the complaint. As so modified, order affirmed, without costs or disbursements. Although defendant Lakeville Medical Laboratories, Inc., concededly had no license to perform pap smear tests for the detection of cervical cancer during the period March 1, 1973 to June 30, 1976, there is no evidence that any of the approximately 96,000 tests performed during that period were defective. Since plaintiff and those she seeks to represent have had the benefit of the defendant laboratory’s work, they are not entitled to recover payments which they have already made; the parties, in these circumstances, should be left as they are (see Segrete v Zimmerman, 67 AD2d 999). Lazer, Shapiro and Cohalan, JJ., concur.