defendants have violated new york health laws section eighteen to see by charging one dollar fifty cents per page for copies of medical records twice the per page cap permitted under the statu unlike the case previously i guess how many pages were there were much are we talking about just for the plaintiff it was probably in the s or twenties dollars but for the class it mounts to millions of dollars of overcharge unlike the case previously decided by this court regarding the same statute who has sky vs health court technologies plaintiff brought this case on behalf of a class of persons who are charged more dollars seventy five cents per page cap and neither science nor the hospital disputed that they are health care providers covered by the public health law section eighteen the district court dismissed plaintiffs claim on the grounds that the public health law section eighteen does not afford a private right about action we contend that the district court erred the court has in the record on appeal a decision from beverly cohen of the supreme court of the state of new york in federer versus state staten island university hospital which squarely addressed the issue at hand it's not a public right it is not your honor but it is part of the record but is that relevant that it's published it is not your on it can you think whether it's published or unpublished has no impact on whether we would give that credit or infer from that that that's how the highest court of the state would rule that's correct your honor because it is still a publicly available document your honor and the appellate division affirmed based on the opinion of justice beverly cullen and i ask you on that point i don't know what the answer to this is but as a matter of new york law  when the appellate division in a published decision that's one sentence long says affirmed for the reasons stated by the trial court does that under new york law precedent binding precedent of the intermediate appellate court do you know is there any case law that says whether it's sort of by adoption becomes precedent or not we have not found any case other address es this directly but we believe given that it is a published appellate division and that lower court decision is publicly available that the reasoning holds fast but it's not binding i mean we were to conclude  court was was right we're not bound by the st part absolute i mean it's persuasive authority that's exactly right your honor you are not bound by it but it is persuasive authority as to what the highest court of new york state would do which is we have an option that the district court didn't have which is we can refer it to the highest court and ask them to certify to them and ask them to tell us oh absolutely but this is a didn't know the standard your honor and you absolutely have the right to look at the entire record on appeal which now includes that that's correct your honor and those issues before the other panel are not before this panel as i mentioned our case is different in that we do not we do not have a dispute as to whether th as justice beverly cohen explained in her decision she reviewed the statutory language and she reviewed the legislative history and she concluded correctly that the remedies are not exclusive to article seventy a proceeding or a section twelve for sitting by the attorney general rather than the statute express leaves open the option to for plaintiffs to have other remedies including a private right of action doesn't leave  when you agree no i would not you're out of it i think that like justice beverly cohen actually reviews the statutory history over several pages and now as analyzes a statutory language versus various provisions of the public one into the statute well your honor the legislature didn't specify just for this provision those two other remedies it was broadly for all of public health law in addition we've cited several seventy eight remedy because your opponents argue look you can go into article seventy eight and my understanding is that they argue that you could seek damages as an incidental matter in those proceedings but you reply and it wasn't entirely clear to me but you're fighting that in some respect could you just explain what your position is about the scope of an article seventy eight remedy absolutely we believe that the article seventy eight  is really intended to join a defendant to do the action the fired which is what in your care it would be if the defendant did not provide the record and refused to provide th dollars seventy five cents here we've already have the record we've already paid the money but we paid in excess of the zero dollars seventy five cents and show that defendants position is that we should just get as an incidental remedy the access fees but we have no basis to bring in article seventy eight dollars action at all if your view is on science and a guy i think i probably just continually you are but is it your view is that an after the fact refund as it were is not available under good morning your honors in may it please the court i'd like to begin briefly with judge chin with asking questions because i think you've pointed out that the key issue here which is the public health law here has two specific and for fashion a different remedy with broader coverage now here begin with just ended with which is you in your view an article seventy eight proceeding would entitle her to get a refund absolutely judge at the moment that she filed the lawsuit that ortiz filed a lawsuit that they did not have the refund we didn't know about the accidental payment as if the request came from a lawyer so we had overcharged so at that moment the proper remedy under this would have been an article seventy eight dollars and adams versus welch and new york tel vs nassau county both appellate department cases in new york say even where the only remedy is reimbursement of a roni is charges of article seventy eight dollars is appropriate defendants have there are a lot of cases where there's been overcharge of cactuses and the only thing at issue now is to return of the money and those are deemed to be incidental and the reason is that if you look at what the statute here says statute at  we obligated the provider to provoke to furnish copies of a patient record at no more than zero dollars seventy five cents per page and section thirteen says the performance of any duty or the doing of any act in names be enforced and of course but if article seventy eight dollars because the statute says that reasonable charge for paper copies can exceed zero dollars seventy five cents if a provider furnishes copies at a higher rate that violates the statute and you can in th enjoy in the performance of that duty to effectively make someone whole as if the statute had been complied with just to be clear is your position that if let's say in this situation there had been the charge of a one dollar fifty cents someone complained and as long as the hospital had nevertheless provided the documents so the only issue on the table was the overpayment that the plaintiffs could go and start an article seventy eight proceeding solely to group obtain a refund of the overcharge absolutely that's that's what i believe new york law says and in fact the nd department in the signature health case makes clear that when you have an article seventy eight with a right to obtain incidental damages that actually militates against implying a private right of act again i just want to get your that went because when i hear incidental damages it sounds like that's an appendage to something else like you're getting an injunction hand me the records that's the injunction and by the way incidentally to the injunction telling you to give me the records i also get damages i want to make sure it's not like a pendant or supplemental claim in your view i understand your honor and i think the way to understand this is what does the statute require the statute required that provider of the records to provide the records at no more than seventy five that when that obligation when that duty is not performed the statute says there is a private action not a plenary action but an article seventy eight and you can do one of two things in wealth of of article seventy eight cases is deemed to be incidental but look there are different sections of the public health law and some of them have expressed reimbursement provisions but this one doesn't right and eighteen to doesn't include a remedial or reimbursement provision doesn't it and that is precisely your honor why unlike the i'm on it either the medicare case which judge cote cited where it would have been appropriate for example to infer a private right of action because the statute not only has a prohibition but it also has an obligation to reimburse and then the courts have said ok in that situation there is something that language in the statute is doing something it's giving us the reason to infer a private right of action and i'm here i'm a private but you're telling me that an article seventy eight if the appellant here had brought this is an article seventy eight they could get damages for a refund or reimbursement and i just don't see that language in section eighteen it is another sections of the public health law but not this one is that correct or incorrect i think your honor perhaps we have a different difference of opinion if i were reading the statute and i ultimately you get to make the final call but i understand the statute eighteen to we as obligating a provider to prefer nish a copy of a record at no more than zero dollars seventy five cents per page and i see this as providing the right to enjoin that duty to enforce that duty to an th guy duty has two components provision of the document and not charging more than seventy five dollars if someone has charged more than zero dollars seventy five cents for the document to enforce the party's right to have hold the defendant accountable under that statute requires the court to order that in financial relief if not a form of plenary damages that's not compensatory damages we're having a really interesting discussion of speed law and maybe that has is the segue to why don't we just sort of file this and ask the new york state court of appeals to resolve this issue your honor certainly as we said in our brief you're you're you're free to do that and there's a possibility that another part of the statute may go up to the court of appeals as well the question of whether a company like this is even a provider although it's not clear that that case will go because cases sometimes settle it may not happen but i would say your honor that since your job this court's job is to infer what the highest court in the state would do not what a trial judge in an opinion where she actually flipped the bird and judge vader just to make one point and i'll directly respond judge baiter up the birds in any case just knowing justice cohen in the fader case flipped the bird and she basically said because this statute doesn't preclude a private right of action i'm going to look at these other cases that have them and that's not really saying whether the the private right would be consistent with the statute just whether it might not be precluded but i would say you can certainly give that whatever weight you want to give it to but we know over the last fifteen years the court of appeals has looked at private rights of action on twelve times and on not one thing the occasion as the court of appeals implied or inferred a private right of action in a statute that didn't have and the only time the appellate courts do that is either when there is a right and there is no remedy whatsoever that the legislature provide for and that's not the situation here because the legislature did provide for remedy but if if coach and you are wrong and there is no refund avenue for folks like the appellant here the fact that the medical provider is going to get a whopping big fine doesn't do much for the person who's out of pocket right i would yes i don't disagree with that your honor but i would say that in this situation the fact that relatively unique the plaintiffs brought this action that was the  indication that there had been an overcharge an inadvertent overcharge immediately the company refused refunded the money so the plate that actually has the document and within a short time after filing the lawsuit actually had not overcharged i'm sorry you just said the facts are rather unique i thought we have a number of cases pending before this court or have been pending at different times about the overcharge there have been i think half a dozen cases  have percolated through the courts which i guess suggests to me that it's not that unique and wouldn't it be nice rather than duking this out case by case and everyone raising a one million different arguments to just go right to the new york court of appeals and say assuming and they won't maybe we will but if we were to certify this question to the new york court of appeals how would you phrase the question that ought to be certified does the public health law  york state utilized for class actions during cerebral cases under article seventy eight where new york state courts have allowed class action so once again it seems to me that the legislature here provided not one but two remed one of the remedies is a private right of action it's just not a private action it mightn't title punitive damages or additional life the damages but it does in my view and i think if you look at the cases on tax returns and the like your honors the district court in this matter is the st court either federal or state at the trial or appellate level to conclude that there is a private right of action under public health law section eighteen the consensus among but there clearly have been a big deal that was the st one to rule them but there are several pending cases as your honour's where the cases have proceeded past the motion to dismiss litigants have been fighting under section eighteen for years if we were to certify what we view i would you probably pose the question before i get to that question your honor i must remind this court that under the nd circuit precedent under developed the hopkins and this court has had issues of state law are not to be routinely certified to the highest court of new york simply because a certification procedure is available it is the nd circuits job to states is this way which is we've done it in our papers so i don't want to mess it well the district court erred in dismissing plaintiff's claim for the violation of new york health law section eighteen to be on the grounds it of force no private right of action where private right of action consistently has been recognized for a violation of section eighteen to eat and state and federal courts a little bit slanted isn't it may not certified but if it must it is a simple question whether the statute affords a private litigant a private right about action thank you thank you we'll reserve decision