
    Buffalo Family Practice Medical Associates, P. C., Appellant, v Individual Practice Association of Western New York, Inc., et al., Respondents.
    [683 NYS2d 457]
   —Judgment unanimously reversed on the law with costs, cross motions denied, complaint reinstated, motion granted in part, judgment granted and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Plaintiff, a group of physicians and other health care providers, commenced this action against defendants, Individual Practice Association of Western New York, Inc. and Independent Health Association, Inc. (Independent Health), for a judgment declaring the rights of the parties under their contract and that plaintiff is entitled to recover damages for an alleged breach of that contract. The dispute arose over the amount to which plaintiff is entitled from a referral fund after the fund has been debited for pharmaceuticals. Defendants debited the Pharmacy Referral Fund with the amount defendants paid to the pharmacies plus the co-payment amount paid by the patient. Plaintiff contends that that was improper. Supreme Court concluded that the amount defendants debited was correct, denied plaintiff’s motion and granted defendants’ cross motions for summary judgment dismissing the complaint. That was error.

The contract provides that deductions from the fund are for the amount paid by defendants to pharmacies for prescriptions, not the additional amount of patient co-payments that they have not paid. We thus grant judgment in favor of plaintiff declaring that, pursuant to the terms of the contract, defendants are authorized to debit the Pharmacy Referral Fund only with the actual amounts that they have paid to pharmacies and therefore grant in part plaintiffs motion for summary judgment. We are unable to determine on this record the actual amount each pharmacy charged to Independent Health and thus remit the matter to Supreme Court to determine damages. (Appeal from Judgment of Supreme Court, Erie County, Cosgrove, J. — Declaratory Judgment.) Present — Denman, P. J., Pine, Pigott, Jr., Balio and Fallon, JJ.  