Moadel v Pruitt

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Moadel v Pruitt 2012 NY Slip Op 31392(U) May 8, 2012 Supreme Court, New York County Docket Number: 602245/08 Judge: Debra A. James Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY PRESENT: DEBRA A. JAMES PART 59 Justice KENNETH MOADEL, M . D . , MOADEL, M . D . , P . C . , Index No.: a n d KEN 602245108 12/23/11 Motion Date: Plaintiffs, Motion Seq. No.: -v- 06 Motion Cal. No.: MATTHEW J . P R U I T T , JERREYLL TRAVIS JACKSON, M. D., JESSICA LEMOINE, ALL-STAR MEDICENTERS, L L C , and JERREYLL T . JACKSON, M. D., P . C . , Defendants. FI E M 24 2M2 Y NEW YORK The following papers, numbered 1 to 5 were read on this motion for pmbt!yw$%m PAPERS NUMBERED Notice of Motion/Order to Show Cause -Affidavits -Exhibits Answering Affidavits - Exhibits Replying Affidavits - Exhibits C ross-Motion : Yes NO (Moadel), and Ken Moadel, P l a i n t i f f s Kenneth Moadel, M . D . M.D., P.C. (Moadel PC) move for partial summary j u d g m e n t pursuant to CPLR 3212, on the first, second, sixth and seventh causes of action in the complaint. Defendants Matthew J. Prnitt, Jerreyll Travis Jackson, M . D . , LLC, a n d J e r r e y l l T. Jackson, M . D . . , All-star Medicenters, P.C. cross-move f o r summary judgment dismissing the complaint. Check One: Check if appropriate: FINAL DISPOSITION DO NOT POST Defendant Jessica NON-FINAL DISPOSITION REFERENCE SETTLElSUBMlT ORDEWJUDG. [* 2] Lemoine was dismissed by order of the court dated April 17, 2009. Dr. Moadel is an ophthalmologist specializing in l a s e r correction procedures. Moadel and defendant Matthew J. Pruitt (Pruitt), a non-physician, each held a 50% i n t e r e s t in CT Laser Management, LLC d/b/a Onevision (Onevision). They agreed to share profits, losses and expenses equally. was an operating member of Onevision. Pruitt The alleged exclusive purpose of OneVision was to provide administrative services to Moadel PC, including marketing, advertising and management services. Onevision compiled a prospective client list and an existing client list for Moadel PC. Additionally, Onevision created a marketing p l a n for Moadel PC. Onevision was p a i d for its services. On F e b r u a r y 25, 2 0 0 8 , Moadel requested, in an e-mail to Pruitt, that Onevision suspend its services to Moadel PC and f o r w a r d a l l medical records and relevant telephone inquiries to Moadel. The complaint further alleges that Pruitt delayed complying with Moadel s requests, formed All-star Medicenters, LLC, d/b/a Nuvision (Nuvision), and began to o f f e r administrative services to Jerreyll Travis J a c k s o n , M . D . ( J a c k s o n ) , an ophthalmologist recently associated with Moadel. These services allegedly included use of Moadel P C s client -2- [* 3] lists and marketing plan, and allegedly resulted in an advertising campaign containing purported testimonials for Nuvision from actual Moadel PC patients. This action, commenced on September 3, 2008, asserts causes of action f o r unfair competition by unauthorized use of proprietary information (first and second), and deceitful advertising by misappropriation of Moadel's image (sixth and seventh), among others. "The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law." Qa. Ilas-Step henson v Waismag, 3 9 AD3d 3 0 3 , 306 (lat Dept 2007), citing Wipe9 r a d v New Y o r k Univ. Med, Center, 64 N Y 2 d 851, 853 (1985). Upon p r o f f e r of evidence establishing a prima facie c a s e by the movant, "the p a r t y opposing a motion for summary judgment bears the burden of 'produc[ing] evidentiary p r o o f in admissible form sufficient to r e q u i r e a trial of material questions of fact."' P e o le v G r a s s o , 50 ~ A D 3 d 535, 545 ( l BDept 2 0 0 8 ) , quoting Zuckesrnan v C i t y ~f Ne W t York, 49 N Y 2 d 5 5 7 , 562 (1980). If there is any doubt a s to the existence of a triable issue of fact, summary judgment must be denied. Rotuba F.xtruders v Ceppo s, 46 N Y 2 d 2 2 3 , 231 (1978); G ~ ssman v Amalqamat.ed Hous. Corrs. Q -3- , 2 9 8 A D 2 d 224, 226 [* 4] ( l s tDept 2002). Where a party fails to meet its prima facie burden, its summary judgment motion shall be denied regardless of the sufficiency of the opposing papers. Matte r of S i e q e l , 90 AD3d 937, 940 ( 2 d Dept 2011), citing Wineqrad, 64 N Y 2 d at 853. The court shall deny the parties' respective motions f o r summary judgment as there a r e issues of contested fact which preclude summary disposition. At a minimum, the parties agree that Onevision operated as a joint venture with Moadel and P r u i t t each owning 50% of the venture and Pruitt drawing an agreed upon salary. It also appears t h a t there was no written partnership or venture agreement between Moadel and Pruitt and no written contract between Onevision and Moadel PC. As stated by a Justice of this Court, A joint venture has the characteristics of a partnership and many of its legal consequences. It has been said that a joint venture is a partnership for a limited time and purpose. A partnership O F a joint venture terminates with the withdrawal of any joint venturer or partner, or on the parties' agreement to terminate the venture. . Such termination, however, is not a termination of liability to each other previously incurred. That can o n l y occur among partners and joint venturers upon an accounting or release. The termination which occurs on withdrawal or agreement is a prospective termination, that is, the partnership or joint venture no longer engages in any new undertakings. A partnership or joint venture, however, continues to exist for the purpose of winding up claims and obligations. -4- [* 5] N o r t h River Ins. Co. v Spain Oil C o r n , , 135 Misc2d 480, 482 -483 (Sup Ct, NY County 1987, Stecher, J.). In the absence of any written agreements governing the relationship between Moadel, Pruitt, Moadel PC and Onevision, the p a r t i e s ' claims and defenses must rest on their conflicting testimony and evidence about their transactions and interactions in order to determine their respective rights. While plaintiffs claim t h a t defendants misappropriated proprietary information belonging to plaintiffs, plaintiffs fail to establish a s a matter of law that the information was in fact proprietary to plaintiffs and n o t to Onevision and there are also questions of contested f a c t as t o what rights, if any, plaintiffs granted Onevision and the defendants to the allegedly misappropriated information. With r e s p e c t to the claims between Moadel and Pruitt individually the relationship of the parties is especially germane to a determination of their claims because "[ilt is well settled that one partner cannot sue t h e other at law, as distinguished from an action in equity, with respect to partnership transactions, except after a full accounting, and balance struck, and such an action is on contract and not ex delicto. If one partner betrays his trust, a n d converts to his own use partnership property, he incurs the usual -5- [* 6] liability that one partner incurs to another respecting partnership affairs, i. e., to be held liable in an accounting, but he cannot be sued by the other partner for damages in an action for conversion." pa1u rv v Rezinas , 183 AD 456, 460 -461 ( l S t Dept 1918). Therefore, based upon the failure of t h e respective parties to establish a prima facie case the court shall deny plaintiffs' motion f o r partial summary judgment in their favor, pursuant to CPLR 3212, on the first, second, sixth and seventh causes of action in the complaint and shall deny defendants' cross-motion for summary judgment dismissing t h e complaint. Accordingly, it is ORDERED that plaintiffs' motion for p a r t i a l summary judgment pursuant to CPLR 3212 on the f i r s t , second,' sixth and seventh causes of a c t i o n in the complaint is DENIED; and it is further ORDERED that defendants' cross-motion for summary judgment dismissing the complaint is D E N I E D ; and it is further ORDERED t h a t the parties are directed to attend a s t a t u s conference on Tuesday, June 12, 2012 at 2 : 3 0 P . M . , at IAS Part 59, Room 103, 71 Thomas Street, New York, NY 10013 to schedule all remaining discovery in this action; a n d it is further -6- [* 7] action in the cornplaint and shall deny defendants' cross-motion for summary judgment dismissing t h e complaint. Accordingly, it is ORDERED that plaintiffs' motion for partial summary judgment: pursuant to CPLR 3212 on the first, second, sixth and seventh causes of action in the complaint is DENIED; and it is f u r t h e r ORDERED that defendants' cross-motion for summary judgment dismissing t h e complaint is DENIED; and it is further ORDERED that the parties a r e directed to attend a $tatus conference on Tuesday, June 12, 2012 at 2 : 3 0 P.M., at IAS P a r t 59, Room 103, 71 Thomas Street, New York, NY 10013 to schedule all remaining discovery in this action; and it is further ORDERED t h a t the deadline to refile the note of issue is extended to July 31, 2 0 1 2 . This is the decision and order of the court. Dated: May 8 , 2 0 1 2 FILED ENTER : MAY 24 2012 NEW YORK COUNTY CLERK'S OFFICE DEBRA A. JAMES -6-

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