Matter of Total Mri Mgt. LLC v Greenfield Imaging Assoc. Imaging LLP
Annotate this CaseDecided on February 24, 2006
Supreme Court, Nassau County
In the Matter of the Arbitration Between Total Mri Management, LLC, Petitioner,
against
Greenfield Imaging Associates Imaging, LLP AND GREENFIELD AND JAMES M.D., LLP, Respondents.
10970-03
COUNSEL FOR PETITIONER
Hofheimer, Gartlir & Gross, LLP
530 Fifth Avenue
New York, New York 10036
COUNSEL FOR RESPONDENTS
Peter Birzon & Associates
350 Jericho Turnpike - Suite 104
Jericho, New York 11753
Leonard B. Austin, J.
In Motion Sequence No. 4, Respondents Greenfield Imaging Associates West, LLP and Greenfield and James, M.D., LLP, move, pursuant to CPLR 2221, for an order (1) staying proceedings in this matter pending discovery and resolution of stated issues in a related action entitled, Alan Greenfield, M.D., et., al., v. Louis Weitz, M.D., et., al; and (2) a further order vacating a stipulation "so-ordered" by this Court dated August 12, 2003, entered into between the parties.
In motion Sequence No. 5, Respondents Greenfield Imaging Associates West, LLP and Greenfield and James, M.D., LLP, also move for an order directing that the Petitioner Total MRI Management, LLC, cease and desist from submitting certain applications to insurance carriers in the names of Alan Greenfield, M.D. or his associated entities, until such time as Petitioner provides the Greenfield entities with copies of claim forms to be submitted.
In Motion Sequence No. 6, Petitioner Total MRI Management, LLC moves for an order, pursuant to Judiciary Law §§ 753 (8), 756, 761, 770, 772 and 773, adjudicating Respondents Greenfield Imaging Associates West, LLP and Greenfield and James, M.D., LLP. to be in contempt for their alleged willful failure to obey the so-ordered stipulation dated August 12, 2003.
BACKGROUND
By agreement dated April, 1999, Petitioner Total Management, LLC ("Total"), entered into a license agreement with the Respondent Greenfield and James, M.D., LLP ("G &J"). Pursuant to that agreement, G & J and its principal, Alan G. Greenfield, M.D. ("Greenfield"), utilized Total's facility at 114-04 Beach Channel Drive, Rockaway [*2]Park, NY to conduct diagnostic imaging and radiologic services ("Licensing Agreement" or "1999 Agreement").
In November 2001, Dr. Greenfield's successor entity, Greenfield Imaging Associates West ("Imaging"), assumed the 1999 license agreement after executing a so-called "Assumption of Turnkey License Agreement" ("Assumption Agreement") which essentially continued the terms and conditions of the 1999 agreement.
Pursuant to the terms of the licensing agreement, Total was to supply accounting, personnel and other management services to Imaging, including the preparation and filing of no-fault insurance forms necessary to obtain payment for services rendered by Dr. Greenfield.
The Assumption Agreement required Imaging to pay a monthly "facility fee" for use of the premises and further provided that "so long as any Facility Fees remain unpaid," Total would have a "continuing security interest in all accounts receivables" of G & J and Imaging (the "Greenfield entities").
Claims or disputes arising under the agreement were to be resolved through arbitration.
The radiologic services provided by the Greenfield entities at Total's facility were, in large part, rendered to patients whose claims were covered by Workers Compensation or New York's no-fault insurance scheme pursuant to Insurance Law § 5105, et seq.
Subsequent to the execution of the Assumption Agreement in 2001, the relationship between Greenfield and Total's managing member, Louis Weitz ("Weitz"), began to deteriorate.
The disagreements which arose centered principally upon the billing practices and procedures utilized by Total; to wit: Total's alleged practice, until December 2002, of affixing Greenfield's signature to no-fault forms with staff initialing his name or through staff using a signature stamp. Total claims these practices were affirmatively authorized by Greenfield.
Moreover, Greenfield further claims that Weitz effectively dominated and took control over all office billing procedures; had his own name improperly added as a signatory to certain Greenfield entity bank documents and accounts; attempted to influence Greenfield's medical findings if he did not identify the existence of a serious injury; and forged Greenfield's signature on certain no-fault forms which have been submitted to no-fault carriers for reimbursement. Total and Weitz have vigorously denied these claims.
The acrimony between the parties reached its apex in July 2003, when Greenfield entered Total's offices and removed a number of patient files and other documents.
In response, by letter to Greenfield dated July 11, 2003, Weitz terminated the license agreement. Weitz asserted that Greenfield's conduct in removing the files, among other things, constituted a repudiation and breach of the agreement. After the parties terminated their professional relationship, Greenfield established his own radiologic imaging facility.
Thereafter, Total instituted an arbitration proceeding alleging, inter alia, [*3]entitlement to damages from the Greenfield entities for breach of the license agreement.
Before the arbitration proceeding could be concluded and after extensive negotiations in which this Court participated the matter was finally settled and memorialized by a "so-ordered" stipulation dated August, 12, 2003 ("Stipulation").
The Stipulation provides that "Greenfield shall not contract any third party payors and instruct or direct them not to pay Greenfield for its services at * * * [Total's ] Facility" (Stipulation, ¶ 3[d]). Moreover, it was provided that Greenfield acknowledged Total's "valid lien" on stated accounts receivable (Stipulation, ¶ 3[f]).
Paragraph 6 (b) of the Stipulation provides that, if Total required Greenfield to execute and/or complete a document to collect an account receivable, "same shall be executed if correct and mailed back to * * * [Total] within two (2) business days * * *."The parties also agreed that neither would "disparage" the other, or make statements impugning or disgracing the business or professional reputation of the other, and that with the exception of certain escrow and other sums not relevant here Greenfield is "owed no other sums under the Licence" agreement (Stipulation, ¶ 5[g]).
Notwithstanding, the stipulation's bolded declaration that the "dispute [is] settled," the post-settlement landscape has been anything but uneventful and quiescent.
Shortly after the Stipulation was executed, Total brought on an application to hold the Greenfield entities in contempt for violating various provisions. The application after extensive briefing was ultimately granted (by Order dated January 13, 2005) to the extent that the matter was set down for a hearing.
In August 2005, and before the contempt hearing could be conducted, Greenfield brought on the instant application for a stay of the instant proceedings and for an order vacating the so-ordered stipulation on the grounds that the then two-year old Stipulation was unenforceable and void as against public policy.
In support of this theory, Greenfield contends that during the pendency of the license agreement and prior to the parties' termination of their professional relationship in 2003 Weitz, through a cumulatively evolving pattern of domination and intimidation, effectively assumed control and de facto ownership of the Greenfield medical entities, and thereby engaged in the illegal and improper practice of medicine; i.e., the impermissible, corporate practice of medicine by non-physicians. See, State Farm Mut. Auto. Ins. Co. v. Mallela, 4 NY3d 313 (2005). See also, Education Law § 6507(4)(c); Business Corporation Law § 1507, 1508; Insurance Law § 5102(a)(1); and 11 NYCRR § 6503.16 (a)(12).
At approximately the same time, the Greenfield entities submitted their order to show cause for vacatur of the Stipulation. They also filed a related, plenary action in this Court against Weitz and Total, seeking essentially the same and additional relief based upon the same illegality theory.
The complaint in the subsequent action contains an allegation that, at some point in 2003, when the parties were apparently at loggerheads, a mysterious, unnamed visitor clothed in "long black leather coat [and] sunglasses" paid an unannounced, after hours visit to Greenfield at the premises. This individual, who refused to identify himself, purportedly advised that he was a friend of Weitz and had "come up from Atlantic City" to inquire why he (Greenfield) was giving "Weitz a hard time." According to Greenfield, he refused to let this individual intimidate him. [*4]
The new complaint, which has apparently been filed but not yet served, seeks damages and declaratory relief (1) setting aside the Stipulation as illegal; and (2) voiding the Greenfield entities' obligations to Total thereunder.
Significantly, the complaint also contains separately captioned causes of action which identify eight no-fault carriers to which Total submitted claims subsequent to April 4, 2002.
These causes of action seek declaratory relief to the effect that, in light of Weitz' purported fraudulent, de facto ownership of the Greenfield medical entities prior to July 2003, the named carriers do "not have an obligation to pay the claims submitted by Weitz and Total since April 4, 2002 * * *."
According to Weitz, there are over $1 million dollars of outstanding reimbursement claims still pending for services performed by Greenfield between January 2002 and July 2003.
In response to the Greenfield applications and the newly filed lawsuit, Total has brought on an order to show cause for an injunction precluding Greenfield from serving the complaint and for an order holding the Greenfield entities in civil and criminal contempt for violating stated provisions of the August 2003 Stipulation. As part of
Total's order to show cause, this Court temporarily restrained the Greenfield entities from serving the new complaint pending determination of this contempt application.
Lastly, by separate order to show cause dated October 24, 2005, the Greenfield entities have moved for an order enjoining Total from engaging in further billing for medical services performed by Greenfield until such time as Total provides Greenfield with copies of the proposed claim forms and allows Greenfield a period of two months,
after receipt of the forms, within which to verify the medical provider signatures affixed thereto.
In support of this application, Greenfield claims, in substance, that (1) his name was forged by Total on certain medical reports and health insurance claims forms submitted to various carriers; (2) Total fraudulently sought reimbursement for radiologic services performed by a physician (a "Dr. Peyser") who had no relationship with Greenfield's medical corporation; and (3) in 2005, Total submitted fraudulent bills in Greenfield's name to and received payment from the Vytra Health Plan ("Vytra") even though Greenfield never treated these patients and was not a participant in Vytra.
In opposing Greenfield's contentions, Weitz asserts that (1) the billing procedures at Total were actually overseen primarily by Greenfield, who was at the facility more frequently than he was; (2) before January 2002, billing was performed by an outside service, which regularly signed Greenfield's name to bills with his permission, knowledge and consent; and (3) when Total later assumed billing responsibilities, Greenfield himself provided a name stamp and/or expressly authorized billing personnel to sign his name, which merely constituted a continuation of the prior custom and practice of processing claims. Moreover, since Greenfield reviewed the patient files himself, he was aware of this practice.
Additionally, Weitz asserts that when Greenfield dictated his medical reports, [*5]staff members would generally place not only his initials on the reports, but also their
own, so as to signify that the staff member had signed the document on Greenfield's behalf.
As to claims relating to Dr. Peyser, Weitz asserts that Dr. Peyser was retained briefly in July 2002, after Greenfield left for vacation without providing any coverage.
Weitz claims that the licensing agreement authorized Total to license the facility to other physicians and that when Greenfield left, Total asked Dr. Peyser of Diagnostic Imaging Group, Inc. ["DIG"] to provide coverage briefly.
Moreover, Weitz contends that Greenfield was aware of the Peyser billings well prior to the August 2003 Stipulation, as evidenced by a letter he (Greenfield) wrote to Weitz in September 2002 in which referred to those services.
As to the 2005 Vytra claims, Weitz argues that Vytra merely listed the wrong facility address on the remittance forms; that the patients listed were treated by Greenfield in 2005 at Brunswick Hospital where he is on staff; that Total never billed for these patients and did not receive any checks from Vytra based on the treatment rendered; and that, according to Greenfield's own website, he does, in fact, participate in the Vytra plan.
In sum, and according to Weitz, "[a]ll Greenfield is claiming is that * * * [he] did not personally sign or initial documents that otherwise were entirely correct and accurate".
The parties' submissions are now complete and the various applications are presently before the Court for review and resolution.
DISCUSSION
Preliminarily, the Court agrees with Total that the precise nature of the relief requested by Greenfield in his first motion (Motion Sequence No. 4) is unclear and contradictory. On the one hand, Greenfield expressly requests that this Court stay proceedings in this matter until such time as his de facto control and "fraudulent incorporation" theory is finally litigated and resolved in the related, plenary action.
On the other hand, Greenfield also affirmatively and expressly requests relief vacating the so-ordered stipulation in this proceeding. Such relief is inconsistent with his request for a stay in this matter pending resolution of the vacatur issue in the plenary action.
In any event, since the validity of the Stipulation is a prerequisite to Total's contempt application and inasmuch as Greenfield's papers expressly request that the Court vacate the Stipulation, the issue will be considered and resolved by the Court.
A.Motion Sequence No. 4 - Vacate Stipulation of Settlement
It is well settled that "unless public policy is affronted, parties to a civil dispute are free to chart their own litigation course" by "fashion[ing] the basis upon which a particular controversy will be resolved." Mitchell v. New York Hosp., 61 NY2d 208, 214 (1984); Cullen v. Naples, 31 NY2d 818, 820 (1972). See, Denburg v. Parker Chapin Flattau & Klimpl, 82 NY2d 375, 383 (1993). In so doing "[t]hey may stipulate away statutory, and even constitutional rights." Mitchell v. New York Hosp., supra at 214, quoting from, In re New York, L. & W. Ry. Co., 98 NY 447, 453 (1885). See also, Merwest Realty Corp. v. Prager, 264 AD2d 313, 314 (1st Dept. 1999). [*6]
Notably, "[s]trong policy considerations favor the enforcement of settlement agreements" since a settlement "avoids potentially costly, time-consuming litigation * * *, preserves scarce judicial resources * * * [and] produces finality and repose upon which people can order their affairs." Denburg v. Parker Chapin Flattau & Klimpl, supra at 383; and Hallock v State of New York, 64 NY2d 224, 230 (1984). See, McCoy v. Feinman, 99 NY2d 295, 302 (2002); and Desantis v. Ariens Co., 17 AD3d 311 (2nd Dept. 2005). A stipulation is a contract which is subject to the rules of contract interpretation. Ross v. Ross, 16 AD3d 713 (3rd Dept. 2005); McKenzie v. Vintage Hallmark, PLC, 302 AD2d 503 (2nd Dept. 2003); and Charter Realty & Development Corp. V. New Roc Assocs., L.P., 293 AD2d 438 (2nd Dept. 2002).
A stipulation will be enforced in accordance with its terms unless there is proof of fraud, duress, overreaching or unconscionability. DeSantis v. Ariens Co., supra; Shuler v. Dupree, 14 AD3d 548 (2nd Dept. 2005); and Maury v. Maury, 7 AD3d 585 (2nd Dept. 2004). See also, McCoy v. Feinman, supra at 302; and Hallock v. State of New York, supra at 230.
An agreement that is clear and unambiguous will be enforced in accordance with its terms. South Road Assocs., LLC v. International Business Machines Corp., 4 NY3d 272 (2005); Greenfield v. Philles Records, Inc., 98 NY2d 562 (2002); and W.W.W. Assocs. v. Giancontieri, 77 NY2d 157 (1990). The court will determine the intent of the parties from the language of the agreement. Greenfield v. Philles Records, Inc., supra.
Terms of a contract are to be interpreted in accordance with their plain meaning.
Computer Associates International, Inc. v. U.S. Balloon Manufacturing Co., Inc., 10 AD3d 699 (2nd Dept. 2004); and Tikotzky v. New York City Transit Auth., 286 AD2d 493 (2nd Dept. 2001).
The court is to give "...practical interpretation to the language employed and the parties reasonable expectations." Slamow v. Del Col, 174 AD2d 725, 726 (2nd Dept. 1991), aff'd., 79 NY2d 1016 (1992). See also, AFBT-II, LLC v. Country Village on
Mooney Pond, Inc., 305 AD2d 340 (2nd Dept. 2003); and Del Vecchio v. Cohen, 299 AD2d 426 (2nd Dept. 2001).
The court may not add or delete provisions of an agreement under the guise of interpretation nor may the court interpret the language of an agreement in such a way as would be contrary to the intent of the parties. Petracca v. Petracca, 302 AD2d 576 (2nd Dept. 2003); and Tikotzky v. New York City Transit Auth., supra.
The court should also interpret an agreement so as to give meaning to each provision. Hudson Iron Works, Inc. v. Beys Specialty Contracting, Inc., 262 AD2d 360 (2nd Dept. 1999). The court should avoid interpreting a contract in such a way as would render any provisions of a contract meaningless. Helmsley-Spear, Inc. v. New York Blood Center, Inc., 257 AD2d 64 (1st Dept. 1999); and Snug Harbor Square Venture v. Never Home Laundry, Inc., 252 AD2d 520 (2nd Dept. 1998). Moreover, the policy interests favoring settlements are furthered "only if settlements are routinely enforced
rather than becoming gateways to litigation." Denburg v. Parker Chapin Flattau & Klimpl, supra at 383.
In this light, the Court concludes that the Greenfield entities have failed to establish their entitlement to an order vacating the August 2003 Stipulation of [*7]Settlement. That is, it is undisputed that the individual parties involved are educated, sophisticated individuals, both of whom retained able and competent counsel to assist them during the comprehensive, arms-length negotiations which preceded the execution of the agreement. McKenzie v. Vintage Hallmark, PLC., supra at 504 (2nd Dept. 2003); and Merwest Realty Corp. v. Prager, supra. Indeed, in ¶11 of the Stipulation, the parties so provided. Further, Greenfield has not demonstrated that the Stipulation was the product of "fraud, collusion, mistake or accident" or that viewed in its entirety it does not accurately embody the parties' intent with respect to the resolution of the underlying dispute. To the contrary, the Stipulation reads as a well-conceived document which evidences the parties' voluntary resolution of the issues which had previously divided them.
The Court also rejects the theory that the settlement is now voidable or void because Weitz purportedly assumed de facto and/or virtual control of his otherwise, legally organized and constituted medical services corporation.
In advancing this theory, Greenfield relies on the recent Court of Appeals holding in State Farm Mut. Auto. Ins. Co. v. Mallela, 4 NY3d 313 (2005), which held that insurance carriers may permissibly "withhold payment for medical services provided by fraudulently incorporated enterprises to which patients have assigned their claims." Id. At 319.
In substance, the Respondents in Mallela paid off licensed physicians, who then allowed the Respondents to use their names to establish bogus medical corporations which the Respondents themselves actually operated in violation of New York State Insurance regulations (11 NYCRR § 65-3.16[a][12] [eff. April 4, 2002]); Id. at 319-20).
The narrow issue before the Mallela Court was whether no-fault carriers would be required to reimburse the fraudulently created entities for medical services which they provided. The holding in Mallela, was that no-fault carriers were not obligated to remit payment for services rendered by the fraudulently created medical corporations.
No such facts are presented here. Greenfield's medical corporation was legally organized and created in accord with applicable regulations. Nor, as a policy matter, are Greenfield's obligations as a party to a private settlement analogous to those of no-fault carriers asked to pay bills submitted by illegally constituted medical corporations.
Moreover, even if the Mallela holding could be applied to the factual context presented herein, this Court would decline to credit Greenfield's claim that Weitz commandeered his medical practice between 2001 and 2003 so as to warrant vacatur of the Stipulation into which he voluntarily entered after these occurrences allegedly took place.
Although, as the pre-settlement record indicates, there were disagreements with respect to the management of the facility and the billing practices employed by Weitz. Even assuming that some of the objectionable occurrences identified by Greenfield took place, none of the proof adduced establishes, to the Court's satisfaction, that Weitz assumed de facto ownership of Greenfield's practice so as to render the stipulation unenforceable or void. See, AIU Inc Co., v Deajess Medical Imaging, P.C., 235 NYLJ 28, p. 22, col. 1 (Sup. Ct. Nassau Co. 2/10/06).
Additionally, and as discernable from Greenfield's own submissions including the factually explicit claims advanced in his new plenary action he was well aware of [*8]Weitz' allegedly overbearing management style prior to August 2003 and still voluntarily elected to settle his claims against Weitz and Total by executing the Stipulation.
In sum, the Court will not undo the parties' freely negotiated resolution of their dispute based upon the allegations of de facto control advanced here.
Accordingly, the application of the Greenfield entities for an order vacating the August, 2003 Stipulation must be denied.
B.Motion Sequence No. 5 - Preliminary Injunction
With respect to Greenfield's motion to enjoin Total from further, specified billing activities, it is settled that to obtain injunctive relief, the moving party must demonstrate (1) a likelihood of success on the merits; (2) irreparable injury absent granting the preliminary injunction; and (3) a balancing of the equities in the movant's favor. CPLR 6301. See, Aetna Ins. Co. v. Capasso, 75 NY2d 860 (1990); W.T. Grant Co. v. Srogi, 52 NY2d 496 (1981); Coinmach Corp. v. Alley Pond Owners Corp., ___A.D. 3d___,
2006 WL 205022 (2nd Dept. 2006); and Hightower v. Reid, 5 AD3d 440 (2nd Dept. 2004).
Where, as here, the facts are sharply disputed, the elements to establish the right to a preliminary injunction cannot be established and the motion will be denied. Digestive Liver Disease, P.C. v. Patel, 18 AD3d 423 (2nd Dept. 2005). See also, Gagnon Bus Co., Inc. v. Vallo Transp., Ltd., 13 AD3d 334 (2nd Dept. 2004). The determination to grant or deny a preliminary injunction rests in the sound discretion of the motion court. Ying Fung Moy v. Hohi Umeki, 10 AD3d 604 (2nd Dept. 2004).
Upon a review of the factual record, and considering the relevant terms of the Stipulation, the Court cannot conclude that Greenfield has demonstrated his entitlement to an injunction precluding Total from exercising its contractual right to bill no-fault carriers as contemplated by the parties in their Stipulation of Settlement.
Although Greenfield contends that Total engaged in misconduct in connection with certain billing forms and other claim-related documents, Total's affiants have submitted opposing and alternate accounts of the relevant facts which have served to rebut the claims advanced by Greenfield.
More particularly, Weitz has submitted evidence suggesting that certain billing statements and/or forms were executed or stamped by staff members with Greenfield's knowledge, consent and approval; that Dr. Peyser was permissibly retained as a temporary replacement with no attendant fraud involved; and that the so-called Vytra claims were not the product of fraud, as now alleged by Greenfield.
In light of the disputed and inconclusive factual allegations presented (Digestive Liver Disease, P.C. v. Patel, supra. see, Matos v. City of New York, 21 AD3d 936 [2nd Dept. 2005]), the Court declines to suspend the billing processes and procedures which clearly constituted a key component of the parties' settlement.
C.Motion Sequence No. 6 - Contempt
According to Total, Greenfield's commencement of the his new action, in which he seeks, inter alia, monetary damages and purported declaratory relief on behalf of various insurers, constitutes a vindictively motivated breach of the settlement which is intended to "blackmail" Total and damage its business.
Total further contends that Greenfield's commencement of the action constitutes [*9]a violation of ¶¶ 1, 3(d), 3(f), 5(g) and 7 of the Stipulation, which provide that: (1) the Greenfield entities "shall not contact any third party payors and instruct and direct them not to pay * * * for services rendered at the facility"; (2) "Greenfield acknowledges that Total has a valid lien on the Accounts Receivable and peaceably surrenders same pursuant to this Settlement Agreement"; (3) Greenfield acknowledges that (except for a certain escrow account and for compensation for July 2003) he "is owed no other sums" pursuant to the underlying License/Turnkey agreements; and (4) that Greenfield would not disparage Total or "make any statement which tends to impugn or disgrace the business or professional reputation of [Total] * * * its agents principals or employees."
This Court has previously held that "[i] order to find a person in civil contempt, the Court must find that (1) a lawful order of the court, expressing an unequivocal mandate, was in effect; (2) the order was disobeyed; (3) the party to be held in contempt must have had knowledge of the court's order even if the order had not been served upon the party; and (4) the failure to obey the court's order caused prejudice to the rights of a party to the litigation." Alizio v. Perpignano, 8 Misc 3d 1021(A), at p. 4 (Sup. Co. Nassau Co. 2005). See also, Matter of Department of Environmental Protection of City of New York v. Department of Environmental Conservation of State of New York, 70 NY2d 233, 240 (1987); Matter of McCormick v. Axelrod, 59 NY2d 574 (1983) Board of Educ. of City School Dist. of City of New York v. Mills, ___A.D. 3d___, 2005 WL 3676635 (3rd Dept. 2006); and Rienzi v. Rienzi, 23 AD3d 447 (2nd Dept. 2005).
The imposition of punishment for criminal contempt similarly requires a showing that the alleged contemnor violated a clear and unequivocal court order (Matter of Department of Environmental Protection of City of New York v. Department of Environmental Conservation of State of New York, supra at 233; Giorgini v. Goldfield, 22 AD3d 800 [2nd Dept. 2005]), together with proof beyond a reasonable doubt that the respondent has willfully disobeyed the court's order. Matter of McCormick v. Axelrod, supra at 583-4. See, Matter of Department of Environmental Protection of City of New York v. Department of Environmental Conservation of State of New York, supra at 233.
"It is well established that due process does not mandate a hearing in every instance where contempt is sought; it need only be conducted if a factual dispute exists which cannot be resolved on the papers alone." Bowie v. Bowie, 182 AD2d 1049, 1050 (3rd Dept.1992). See, Goldsmith v. Goldsmith, 261 AD2d 576, 577 (2nd Dept. 1999); Guiliano v. Carlisle, 236 AD2d 364 (2nd Dept.1997); and Costanza v. Costanza, 213 AD2d 1043, 1044 (4th Dept. 1995). See also, Ginther v. Ginther, 13 AD3d 1128 (4th Dept. 2004).
The Court agrees that the evidence presented on this motion is sufficient to establish that Greenfield engaged in willful and knowing conduct which constitutes contumacious behavior in violation of the August 2003 Stipulation which this Court "so-ordered." See, Henning v. Ritz, 22 AD3d 524 (2nd Dept. 2005).
There is no dispute that the provisions of the Stipulation at issue here comprise a part of this Court's lawful order and they are clear and unequivocal; that Greenfield's actions in commencing the lawsuit were contrary to those provisions; and that Greenfield's conduct has prejudiced and impaired a right or remedy possessed by Total under the Stipulation of Settlement.
Specifically, and despite the explicit provisions in the Stipulation ¶¶ 3[d], [f], 5[g] [*10]and 7 providing, among other things, that Greenfield (1) would not "disparage" Total; (2) that he recognized the validity of the Total's lien on the accounts receivables; and (3) that he would refrain from instructing third-party payors to withhold payment, he has filed an action in which all three prohibited acts have been attempted.
Moreover, in light of this Courts' prior holding which rejected Greenfield's de facto control theory, the Court must likewise reject the claim that the Stipulation's
provisions are inoperative based upon this theory and that Greenfield was, therefore, at liberty to ignore them by advancing those claims made here.
Further, the inference of wilfulness is buttressed by Greenfield's seemingly gratuitous inclusion of the various insurance carriers as "Respondents" in the action and by the interposing of separate claims seeking declaratory relief purportedly on their behalf. It is unclear how the carriers can be viewed as appropriately joined parties to the action much less how Greenfield possesses standing to viably assert claims directly on their behalf. To the contrary, the record suggests that the carriers were primarily named to create a platform for the dissemination of Greenfield's allegations and claims concerning his de facto control theory.
In short, and under these circumstances presented, the Court agrees that Total has discharged its burden of showing that the Greenfield entities have committed both civil and criminal contempt. See, Garbitelli v. Broyles, 257 AD2d 621, 622 (2nd Dept. 1999); and Guiliano v. Carlisle, supra. See also, Matter of McCormick v. Axelrod, supra at 583-4.
However, since Total's moving papers assert entitlement to "actual damages" and counsel fees without identifying and/or quantifying the actual damages sustained or the amount of counsel fees expended, a hearing must conducted with respect to these claims. Costanza v. Costanza, supra at 1044. See, Lamb v. Amigone, 12 AD3d 1165, 1166 (4th Dept. 2004).
The Court notes as it did in its prior contempt order dated January 13, 2005 that Total will not be entitled to both actual damages and counsel fees in connection with the civil contempt adjudication (Decision at 19-20). In this respect, "an award on a civil adjudication of contempt cannot be more than the complainant's costs and expenses plus $250 where there are no actual damages. Sigmoil Resources N.V. v. Fabbri, 228 AD2d 335 (1st Dept. 1996). See, Daniels v. Guntert, 256 AD2d 940, 942 (3rd Dept.1998); and Gordon v. Janover, 121 AD2d 599, 600 (2nd Dept. 1986). On the other hand, where actual damages are awarded, attorney's fees and expenses are not available. Saffra v. Rockwood Park Jewish Center, Inc., 249 AD2d 480, 481 (2nd Dept. 1998); and Ellenberg v. Brach, 88 AD2d 899, 902 (2nd Dept. 1982).
Additionally, the Court agrees that Total has established its entitlement to a preliminary injunction continuing the temporary restraining order enjoining Greenfield from serving his complaint upon the named carriers which relief was granted upon the initial submission of Total's order to show cause in October 2005.
After considering the relevant terms of the Stipulation of Settlement, together with the applicable legal criteria including Total's likelihood of success on the merits; the potential for irreparable injury; and the weight of the equities (Aetna Ins. Co. v. [*11]Capasso, supra; W.T. Grant Co. v. Srogi, supra) the Court is persuaded that the granting of injunctive relief constitutes an appropriate exercise of its discretion.
It is undisputed that the linchpin theory underlying the Greenfield complaint is that Weitz illegally and fraudulently commandeered and/or assumed de facto control of the Greenfield medical entity a claim which the Court has declined to credit and which Greenfield now intends to broadly disseminate to various insurance carriers on whose behalf he purports to seek declaratory relief.
The Court concurs with Total's assertion that any carrier receiving allegations of this nature, would likely cease payment of all claims, thereby rendering the accounts receivable potentially uncollectible. The Court similarly agrees that the widespread dissemination of these allegations could irreparably impair Total's ability to recover payment for other no-fault receivables earned at its facility.
Lastly, the Court finds that the equities weigh in Total's favor since its business activities could be severely damaged upon service of the complaint, whereas it is unclear what immediate or corresponding injury Greenfield would sustain in the event that service upon the carriers is enjoined.
Significantly, it has been observed that courts possess "clear and indisputable" authority, "upon a proper showing, to restrain persons over whom they have acquired jurisdiction from prosecuting actions in courts of New York State * * *." 67A NY Jur2d, Injunctions § 117. Total's application for a preliminary injunction must be granted upon the terms and conditions set forth in the second decretal paragraph of the temporary restraining order dated October 24, 2005.
Finally, in granting the preliminary injunction sought by Total, the Court is mandated to set an undertaking in the event it is later found that such injunction was inadvertently granted. CPLR 6312 (b); Margolies v. Encounter, Inc., 42 NY2d 475
(1975); Ying Fung Moy v. Hohi Uneki, 10 AD3d 604 (2nd Dept. 2004); and Hightower v. Reid, 5 AD3d 440 (2nd Dept. 2004). Based upon this Courts' findings with regard to the merits of Total's claim and in the absence of any showing by Respondents as to the harm the preliminary injunction would cause, an undertaking in the sum of $2,500.00 is appropriate.
The Court has considered the parties' remaining arguments and concludes that none warrants an award of relief beyond that granted above.
Accordingly, it is,
ORDERED, that the motion by the Respondents Greenfield Imaging Associates West, LLP and Greenfield and James, M.D., LLP, for an order vacating this Court's prior "so-ordered" Stipulation dated August 12, 2003 and for a stay of the instant proceedings is denied; and it is further,
ORDERED that the motion by the Respondents Greenfield Imaging Associates West, LLP and Greenfield and James, M.D., LLP, for an order directing that the Petitioner Total MRI Management, LLC, immediately cease and desist from submitting certain from stated billing activities is denied; and it is further,
ORDERED that the motion by the Petitioner Total MRI Management, LLC for an order pursuant to Judiciary Law §§ 756, 761, 770, 772 and 773, adjudicating the [*12]Respondents Greenfield Imaging Associates West, LLP and Greenfield and James, M.D., LLP., to be in contempt of this Court for their alleged willful failure to obey a so-
order Stipulation dated August 12, 2003 and for a preliminary injunction, is granted to
the extent that the Respondents are adjudged to be in civil and criminal contempt of the Court's so-ordered stipulation; and it is further;
ORDERED, that Respondents are hereby enjoined from serving the subject complaint upon any of the insurance carriers named as Respondents therein, and from disseminating or distributing the complaint in that action, or any of the allegations contained therein to any third party on condition that within ten (10) days of the date of this Order, Petitioner posts an undertaking in the form of a surety deposited with the County Clerk of Nassau County or by posting such sum in an interest bearing escrow account to be maintained by Petitioner's counsel; and it is further,
ORDERED, that with respect to the civil contempt adjudication, the matter shall be set down for a hearing in accordance with this decision and the parties and their counsel shall appear for a conference before the undersigned on March 31, 2006 at 9:30 a.m., for the purpose of scheduling the hearing as to damages on the civil contempt; and it is further,
ORDERED that the Respondents shall pay the sum of $2,500 representing the fine to be assessed as a consequence of the Court's determination that they have been
adjudicated in criminal contempt of the August 12, 2003 so-ordered Stipulation on or before March 31, 2006.
ORDERED, that counsel for the parties shall appear for a further conference on April 6, 2006 at 9:30 a.m.
The constitutes the decision and Order of the Court.
Dated: Mineola, NY _____________________________
February 24, 2006 Hon. LEONARD B. AUSTIN, J.S.C.
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