Schaefer v Brookdale Univ. Hosp. & Med. Ctr.

[*1] Schaefer v Brookdale Univ. Hosp. & Med. Ctr. 2008 NY Slip Op 50409(U) [18 Misc 3d 1142(A)] Decided on March 3, 2008 Supreme Court, Kings County Demarest, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected in part through March 18, 2008; it will not be published in the printed Official Reports.

Decided on March 3, 2008
Supreme Court, Kings County

Harold C. Schaefer, M.D., Plaintiff,

against

The Brookdale University Hospital and Medical Center, et ano., Defendants.



32189/03



Attorney for Plaintiff:

Constantino Fragale, Esq.

Law Offices of Constantino Fragale

575 White Plains Road

Eastchester, New York 10709

Attorney for Defendant:

Stacy Fischgrund, Esq.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP

150 East 42nd Street

New York, NY 10017

Carolyn E. Demarest, J.

In this action by plaintiff Harold C. Schaefer, M.D.(plaintiff) for breach of contract, defamation, and tortious interference with business relations, defendants Brookdale University Hospital and Medical Center (Brookdale) and Hong Kim, M.D. (Dr. Kim) (collectively, defendants) move for summary judgment dismissing plaintiff's complaint as against them contending that the complaint fails to state a cause of action upon which relief may be granted.

Facts of the Case

In May 1994, plaintiff received a degree in medicine from the State University of New York, Health Science at Brooklyn College of Medicine. Commencing on July 1, 1994, [*2]plaintiff was accepted into a six-year residency program in urology at Brookdale. Based upon the approved protocol of the urology program by the Accreditation Council of Graduate Medical Education (ACGME), the first two post-graduate years (PGY-1 and PGY-2) of this program are spent in general surgery and the last four post-graduate years (PGY-3 through PGY-6) of this program are spent in the specialized field of urology. Plaintiff's appointment at Brookdale as a resident was pursuant to a Resident Agreement, which was entered into on a year-to-year basis. Plaintiff's first Resident Agreement (PGY-1) commenced on July 1, 1994 and ended on June 30, 1995, and plaintiff's second Resident Agreement (PGY-2) commenced on July 1, 1995 and ended on June 30, 1996.

On July 1, 1996, after completing the general surgery portion of his residency, plaintiff commenced the urology portion of his residency as a PGY-3 and entered into a Resident Agreement, which covered July 1, 1996 to June 30, 1997. Dr. Kim was Brookdale's chairman of the Urology Department, who supervised the urology residency program. In November 1996, plaintiff's percentile rank on his ISE, a national in-service examination required of all urology residents to evaluate their knowledge in the specialized field of urology, was in the lowest 6%. Also during plaintiff's first year in the urology program (PGY-3), plaintiff received evaluations from his supervising physicians with ratings of "Below Acceptable Performance." Dr. Unni Mooppan's evaluation, dated December 10, 1996, noted that plaintiff "need[ed] improvement in surgical skills and overall performance," and that plaintiff's "technical skills and hand dexterity [were] lacking." Dr. Frederick Gulmi, in his May 8, 1997 evaluation of plaintiff, noted that plaintiff "lack[ed] the necessary skills to perform surgery adequately," and his June 1997 evaluation noted that he was "unsure of [plaintiff's] surgical ability and if it will ever reach independent operating ability." Dr. Kim noted, in his May 14, 1997 evaluation of plaintiff, that plaintiff "did extremely poor [in his] in-service exam" and that he was "poor in surgical skills."

At the end of the year, three full time doctors (Dr. Gulmi, Dr. Mooppan, and Dr. Kim) would review residents' performance and determine if the residents would be advanced to the next PGY. Despite the aforementioned unfavorable evaluations of plaintiff and Dr. Kim's finding that plaintiff's skills were "poor," plaintiff was advanced to his PGY-4 and given the opportunity to improve his performance (Dr. Kim's Dep. Transcript at 110-114). Plaintiff entered into a Resident Agreement for his PGY-4, which ran from July 1, 1997 to June 30, 1998.

Plaintiff's performance on the November 1997 ISE fell to the lowest third percentile. During plaintiff's PGY-4, Dr. Mooppan, in a December 1997 evaluation, gave him an overall rating of "below acceptable performance," and explained that technically he performed "very poor as far as dexterity [wa]s concerned." A handwritten memo, dated January 16,1998 (in the middle of plaintiff's PGY-4), by Dr. Kim noted that there was a conference with plaintiff, himself, and three of plaintiff's full-time supervising attending physicians to discuss plaintiff's poor ISE scores and surgical skills. The memo states that plaintiff "was informed [*3]that he w[ould] not be promoted to chief residency [i.e., PGY-6] unless he improve[d] in ISE and surgical skills" (see also Dr. Kim's Dep. Transcript at 144, 162-165).

Dr. Mooppan's June 20, 1998 evaluation of plaintiff stated that plaintiff's "surgical skills [were] extremely poor" and "as much [as plaintiff] tries, he doubt[ed plaintiff's] ability to improve surgical skills to the level expected of a urology resident." Dr. Mooppan further stated that plaintiff "should consider calmly and collectively about his future career." Dr. Greenstein's June 1998 evaluation of plaintiff similarly noted that plaintiff "need[ed] to improve his surgical skills."

Plaintiff entered into a Resident Agreement for his PGY-5 (executed on February 6, 1998) for a period of one year commencing on July 1, 1998 and ending on June 30, 1999. In November 1998, plaintiff, again, scored in the lowest third percentile on the national ISE. Dr. Mooppan's evaluation, dated December 1998, stated that "in spite of [plaintiff's] hard work and efforts, he continues to be very poor in surgical skills, clinical comprehension and clinical competence." Dr. Mooppan further noted that he "d[id] not feel that continuing in the same tract [wa]s going to do any good,"and "[i]t is high time he start thinking about changing his specialty to non-operative fields." Dr. Gulmi's evaluation, dated December 1998, stated that he did "not feel [plaintiff's] skills [we]re commensurate with his level of training and [that he] ha[d] serious doubts whether they w[ould] ever rise to a level to permit independent and/or unsupervised surgical intervention."

On January 4, 1999, Dr. Kim, Dr. Gulmi, and Dr. Mooppan had a conference with plaintiff to discuss plaintiff's lack of improvement on the ISE and in his surgical skills, and plaintiff was informed that he would not be promoted to his final PGY-6 (from July 1, 1999 to June 30, 2000) (see Plaintiff's Dep. Transcript at 608; Dr. Kim's Dep. Transcript at 348-351). By letter dated February 2, 1999, Dr. Kim confirmed in writing that plaintiff's Resident Agreement would not be renewed for PGY-6 based upon his academic and clinical performance, and he was advised to contact the Office of the Medical Director. Plaintiff met with Dr. Sheldon Berman, who was then Brookdale's Director of Medical Education. Dr. Berman informed plaintiff that there was no recourse available to him and that he was not entitled to any further "due process" (Plaintiff's Dep. Transcript at 222-223, 665, 685; Dr. Kim's Dep. Transcript at 395). By letter dated March 15,1999, plaintiff tendered his resignation, effective March 28, 1999, and Dr. Kim, by letter dated March 16, 1999, accepted this resignation.

On September 3, 2003, plaintiff filed this complaint against defendants, alleging six causes of action. Plaintiff's first cause of action seeks damages for breach of contract. Plaintiff's second through fifth causes of action demand damages for claims sounding in defamation. Plaintiff's sixth cause of action requests damages for tortious interference with prospective business relations. Defendants interposed an answer to plaintiff's complaint, and all discovery has now been completed.

Plaintiff's first cause of action alleges a breach of contract due to his termination and the demand for his resignation, which, he asserts, was without cause, and in violation of the [*4]Resident Agreement. Plaintiff contends that defendants failed to properly notify him of the deficiencies in his performance, give him the opportunity to review same, and provide him with the means to remediate, all in violation of the standards set forth by the Accreditation Council for Graduate Medical Education (ACGME) incorporated into his Resident Contract. Plaintiff claims that if defendants had supervised and meaningfully evaluated his performance, and provided him with the necessary remedial measures during the first year of his residency, he would have been able to assume progressively increasing responsibility and gained the necessary knowledge according to his respective level of education.

Plaintiff has submitted the expert affidavit of Salvatore A. Tedesco, M.D., a director and chairman of surgery with accredited teaching programs for residents. He opines that defendants should have had a meeting with plaintiff and should have intervened during plaintiff's first six months of urology residency (his PGY-3) when the evaluations of plaintiff showed his deficiencies in surgical knowledge, and that plaintiff should have been given a program of study to improve his surgical knowledge and surgical techniques. Dr. Tedesco further opines that defendants should have also intervened to salvage plaintiff's career during his PGY-4, by having a formal documented meeting with plaintiff with a well outlined program of tutoring in both didactic and clinical skills. He states that plaintiff should have been given remedial training at the inception of his second year of urology. Dr.Tedesco also opines that instead of being advanced to his PGY-5 in urology, plaintiff should have been either provided with a structured environment for remedial work, told to repeat the PGY-4, or counseled and assisted in securing a non-surgical residency instead of urology.

Plaintiff complains that there was no plan of review to increase his test-taking skills despite the fact that his ISE scores were in the single digits, and that the same negative remarks were made on his evaluations year after year without providing him with an intensive remedial program. Plaintiff asserts that there were no constructive evaluations, and no mentoring program, and that defendants must have been aware that he would not succeed in being a urologist by his second year without an intensive remedial program. He faults defendants for not providing him with such a remedial program or securing for him a non-surgical residency program.

Plaintiff further casts blame on defendants for allowing his Medicare funding to be almost depleted prior to termination of his residency with defendants. Plaintiff explains that hospitals are compensated by Medicare through the Centers for Medicare & Medicaid Services (CMS) (which funds graduate medical education), to provide the accredited training programs to its residents, and that an applicant's ineligibility for this funding makes it difficult for an applicant to be accepted by a hospital into another program. Plaintiff would, at this point, only be eligible for three months of Medicare funding if he were now to be accepted into another program. Plaintiff alleges that, therefore, as a result of Brookdale's alleged breach of the Resident Agreement, he was unable to complete his medical residency in his chosen specialty of urology and unable to obtain an appointment to another urology residency training program. [*5]

Plaintiff, in his sworn affidavit, claims he had no warnings or notice that unless his ISE scores or surgical skills significantly improved, he would not be advanced to Chief Resident (PGY-6). Plaintiff asserts that defendants never shared the performance evaluations with him, and that he was never told that the continuation of his residency was in jeopardy or contingent upon the achievement of better ISE scores. Plaintiff states that, instead, defendants continued to promote him, without ever placing him on academic probation, and without documentation reflecting a warning to him that his academic and clinical deficiencies could result in his dismissal from the residency program. Plaintiff claims that he was first made aware that he would not be promoted during his PGY-5, when he had completed nearly 80% of his residency at Brookdale and expected to serve as a chief urology resident in his final year (PGY-6) of the program. Plaintiff argues that if it were not for defendants' total disregard of his performance and their duty to formally meet with him to apprise him of his deficiencies, he would have been able to salvage his medical career by choosing another specialized field at an earlier juncture of his residency. Plaintiff, consequently, claims that he has lost income which he would otherwise have received, and seeks compensatory damages of $9 million and punitive damages of $5 million.

Legal Discussion

Defendants' motion is premised on several grounds including the statute of limitations, a lack of evidence to support plaintiff's various claims, the failure to exhaust statutory administrative remedies, public policy and lack of subject matter jurisdiction.

The court first addresses defendants' contention that plaintiff's proper recourse for challenging his termination from the residency program was the grievance process set forth in Public Health Law § 2801-b. They argue that the Public Health Law bars this action and that this court lacks subject matter jurisdiction over plaintiff's breach of contract claim because plaintiff did not first seek redress before the Public Health Council.

It has been established that "[a] resident physician seeking to have his contract to a hospital residency program renewed cannot circumvent the grievance process of Public Health Law § 2801-b" (Matter of Ireh v Nassau Univ. Med. Ctr., 33 AD3d 702, 703 [2006]; see Indemini v Beth Israel Med. Ctr., 4 NY3d 63, 68-69 [2005]; Gelbard v Genesee Hosp., 87 NY2d 691, 696 [1996]). A plaintiff cannot avoid the exclusive grievance process set forth in Public Health Law § 2801-b "simply by asserting a breach of contract claim" (Solomon v Beth Israel Med. Ctr., 248 AD2d 118, 118 [1998], quoting Gelbard, 87 NY2d at 697; see also Indemini, 4 NY3d at 68; Eden v St. Luke's-Roosevelt Hosp. Ctr., 39 AD3d 215, 216 [2007]; Moallem v Jamaica Hosp., 264 AD2d 621, 622 [1999]; Falk v Anesthesia Assoc.of Jamaica, 228 AD2d 326, 330 [1996]). Thus, defendants' motion to dismiss the claims of breach of contract must be granted for lack of subject matter jurisdiction.

A review of the evidence also requires dismissal of the action as a matter of law.

Plaintiff contends that defendants' failure to formally evaluate him and advise him of his deficiencies was in violation of ACGME's requirements, i.e., the Essentials of Accredited Residencies in Graduate Medical Education (the ACGME Requirements). The Resident [*6]Agreement, in paragraph 3.1.1, requires that Brookdale provide the resident with a program of graduate medical education, as outlined in the ACGME Requirements. Plaintiff argues that, therefore, the ACGME Requirements are incorporated into the Resident Agreement, and any lack of compliance with the ACGME Requirements constitutes a breach of the Resident Agreement.

In arguing that the ACGME Requirements were violated because defendants did not formally review his performance evaluations with him, plaintiff relies upon ACGME Requirements VI. A.2. at 354, which provides:

"VI. Evaluation

A. Resident Evaluation

. . .

2.Written evaluations of resident performance are required at least semiannually and must be reviewed formally and communicated in a timely manner to the resident. Subsequent analysis of these evaluations should guide the program director and faculty in judging the strengths and weaknesses of individual residents."

However, the mere fact that plaintiff alleges that he was not shown a formal written performance evaluation is insufficient to sustain a breach of contract claim in light of the evidence that plaintiff was made aware that his skills needed improvement and that his very low ISE scores placed him in jeopardy. Plaintiff admitted at his deposition that he was advised at the beginning of the urology portion of his residency to improve some of his surgical skills, such as knot tying, and to improve his ISE scores (Plaintiff's Dep. Transcript at 404, 417, 424). In addition, Dr. Kim and Dr. Gulmi testified, at their respective depositions, that in addition to bi-annual written evaluations provided by several attending physicians, all residents had received daily feedback (Dr. Kim's Dep. Transcript at 96-100, 402; Dr. Gulmi's Dep. Transcript at 62, 92-93). Plaintiff's residency file also documents meetings regarding his poor performance on October 29, 1996, January 13, 1997, and January 16, 1998. ACME Requirements VI.A.4. (at 354) further provides that "[a] permanent record of evaluation for each resident must be maintained and must be accessible to the resident . . ." Plaintiff does not deny that the evaluations were maintained and were accessible to him.

Plaintiff also relies on Brookdale's Department of Urology, "Educational Philosophy, goals and objective," which, at page 601, states:

"If a resident has serious deficiencies in the medical knowledge and/or surgical skills, the resident will be assigned a mentoring program under one of the full-time staff. If a resident cannot be trained as [a] urologist, he will be advised to change his specially or go through dismissal process according to hospital by- law."Plaintiff contends that no documents reflect that a mentor had been assigned to him. Defendants, however, point out that Dr. Gulmi, who supervised plaintiff on a daily basis, testified that he had served as plaintiff's mentor (Dr. Gulmi's Dep. Transcript at 85-87, 153-154). Plaintiff also argues that, in violation of this [*7]policy, he continued to be promoted, and was not advised to change his speciality until the end of his PGY-5. Plaintiff's argument is unavailing. The fact that a medical residency is terminated due to continuing deficiencies in performance, after the resident had continued to be promoted to the PGY-5 position, has been held not to constitute "a basis for a court's intervention in what is basically the medical school's substantive evaluation of a student doctor's academic performance" (Allawi v State Univ of New York at Stony Brook, 2002 NY Slip Op 40502 [U], at *2 [Sup Ct, Suffolk Co]; see also Easaw v St. Barnabas Hosp., 142 Misc 2d 480, 486 [1989]).

In Allawi, a case factually similar to that at bar, in an Article 78 proceeding, plaintiff contended that the determination to terminate his residency based upon his deficiencies in performance was arbitrary and capricious because, like plaintiff here, he claimed he had not been given adequate advance notice of his deficiencies prior to termination. The court rejected such claims, noting that "[s]trong policy considerations militate against the intervention of courts in controversies relating to an educational institution's judgment of a student's academic performance." See Matter of Olsson v Board of Higher Educ., 49 NY2d 408 [1980]; Tedeschi v Wayne College, 49 NY2d 652, 658 [1980] ["[B]ecause matters involving academic standards [as opposed to disciplinary issues] generally rest upon the subjective judgment of professional educators, courts are reluctant to impose strictures of traditional legal rules."]; see also Matter of Sofair v State Univ. of NY Upstate Med. Ctr. Coll. of Medicine, 44 NY2d 475, 480 [1978]. As noted in Allawi, medical residency programs "provide a vital form of post graduate medical education, with the goal that those who successfully complete these programs have the requisite skill and training to practice medicine." A failure to enforce rigorous academic standards would work a serious disservice to society and could well result in death. "The courts of this State have [therefore] consistently stated their reluctance to intervene in controversies involving educational and academic standards unless the institution exercised its discretion in an arbitrary or irrational manner or in bad faith" (Meller v Tancer,174 AD2d 374, 375 [1991]; see also Matter of Sofair , 44 NY2d at479; Matter of Ann H. v New York Med. Coll., 88 AD2d 296, 299-300 [1982], affd 58 NY2d 734 [1982]).

Subjecting the record before the Court to the appropriate standard of review pursuant to Article 78, it is noted that plaintiff's residency file is replete with evaluations from the attending physicians of the residency program assessing plaintiff's professional performance relating to his academic knowledge and surgical skills as inadequate (see Meller, at174 AD2d at 375). Plaintiff does not dispute his poor performance, and his below average rank on the ISE. Thus, it cannot be said that the determination not to renew plaintiff's Resident Agreement was arbitrary or made in bad faith (see Moukarzel v Montefiore Med. Ctr., 235 AD2d 239, 239-240[1997]; Meller, 174 AD2d at 375).

Plaintiff, however, argues that he was not afforded due process with respect to the non-renewal of the Resident Agreement. He relies upon paragraph 13.1 of the Resident Agreement, which provides: [*8]

"The Resident agrees that the continuation of his Residency depends upon the satisfactory performance of his assigned duties and faithful attendance at scheduled meetings, and that his failure to maintain a satisfactory performance, in the judgment of his Program Director, may result in termination of this Agreement and dismissal of the Resident from the Residency Program prior to the completion date. In the event of resident grievance, academic discipline or dismissal from the Residency Program, the Resident shall be entitled to due process in accordance with the policies and procedures of the Hospital for resident due process. Upon termination of this Agreement, the only obligation of the Hospital shall be to pay the Resident any monies which may have accrued hereunder up to the date of such termination."

The due process section of Brookdale's House Staff Manual (at 89-90), however, provides:

"DUE PROCESS

"When a disciplinary action is contemplated that could result in a Resident's dismissal or significantly threaten the Resident's career development, and the action relates to the failure of a Resident to conduct himself/herself in a manner consistent with either the standards of the medical profession or by the Bylaws, Rules and Regulations of the hospital, the Resident will be entitled to avail himself/herself of the due process procedures set forth below. Actions that relate to the scholarship, clinical knowledge, skills or professional growth of a Resident are issues of academic evaluation and judgment and do not entitle a Resident to the rights and procedures of this policy" (emphasis added).

Here, it is undisputed that the non-renewal of plaintiff's residency was for academic, as distinguished from disciplinary, reasons. Therefore, the due process referred to in paragraph 13.1 of the Resident Agreement is not applicable. See Tedeschi, 49 NY2d at 657-662; compare Easaw, 142 Misc 2d at 487-489; see also, Matter of Sofair, 44 NY2d at 479; Moukarzel, 235 AD2d at 240. Moreover, the Resident Agreement expressly provided that it was for a one-year term, renewable only by mutual agreement and execution of another one-year written Resident Agreement for PGY-6. Defendants were under no contractual obligation to renew plaintiff's Resident Agreement (Amadasu v Bronx Lebanon Hosp. Ctr., Inc., 10AD3d571, 572 [1st Dept 2004]; Moukarzel, 235 AD2d at 239-240). Consequently, Brookdale did not breach the Resident Agreement for PGY-5 when Dr. Kim informed plaintiff that his contract would not be renewed (see Amadasu, 10 AD3d at 572; Roth,180 AD2d at 435).[FN1] [*9]

Moreover, by letter dated March 15, 1999, plaintiff formally resigned from his residency, thereby relinquishing his right to continue in the residency program. Plaintiff argues, however, that he is not barred by his resignation from contending that he is entitled to due process because Dr. Kim was openly hostile toward him, yelled at him, told him to resign immediately, and no longer assigned him to the operating room, thereby allegedly forcing him to resign. Plaintiff contends that he was thus constructively terminated.

Plaintiff's contention is without merit. To prove constructive discharge, a plaintiff must demonstrate that his employer deliberately made the working conditions so intolerable that a reasonable person would have felt compelled to resign. See Flaherty v Metromail Corp., 235 F3d 133, 138 [2d Cir. 2000]; Arendt v General Elec. Co., 305 AD2d 762, 765, n 4[2003]; Matter of Graham v New York City Tr. Auth.,242 AD2d 722, 722 [1997]. The instances of alleged mistreatment by Dr. Kim appear to have occurred only after plaintiff was finally advised of defendants' decision not to renew his residency. Moreover, the record reflects efforts by the attending staff which reviewed him, including Dr. Kim, to afford plaintiff every opportunity for success and their tendency to give him the benefit of the doubt in extending his residency in the face of inadequate performance, thus negating his claim of constructive termination. Plaintiff's voluntary resignation therefore also precludes his breach of contract claim (see Blumenreich v North Shore Health Sys., 287 AD2d 529, 530 [2001]). Based upon all of the above considerations, summary judgment dismissing plaintiff's first cause of action is required (see CPLR 3212 [b]).

Plaintiff's second cause of action for defamation alleges that on September 4, 2002, Dr. Kim executed a Federal Credentials Verification Service (FCVS) form in connection with plaintiff's urology residency training at Brookdale. Under the heading "Unusual Circumstances," Dr. Kim was asked with respect to plaintiff: "[w]ere any negative reports ever filed by instructors?" and "[w]ere any limitations or special requirements placed upon this individual because of questions of academic incompetence, disciplinary problems or any other reason?" Dr. Kim responded "[y]es" to both of these questions. Under the "[p]lease explain any '[y]es' response" section, Dr. Kim wrote that plaintiff "was unable to perform and function in OR with poor academic activity." The FCVS form was stamped received by the FCVS on September 18, 2002. [*10]

Plaintiff's third cause of action for defamation alleges that by letter dated May 27, 2003, Dr. Kim directly advised the New Jersey State Board of Medical Examiners that plaintiff "could not tolerate stress in performing surgery and had severe difficulty to [sic] learning manual dexterity in the operating room."

Plaintiff's fourth cause of action alleges that "in connection with contact with the New Jersey State Board of Medical Examiners, [defendants] knowingly made material misrepresentations respecting [him] and his tenure at the Hospital" and altered and/or improperly executed unspecified documents provided to the New Jersey Board. It further alleges that they failed to provide him with credit for completion of nine months of urology training for the period from July 1, 1998 through May 28, 1999, resulting in delay of approval for a New Jersey medical license. Although plaintiff ultimately obtained an unrestricted New Jersey State Medical License, plaintiff claims that, due to defendants' statement and the consequent delay, he lost an opportunity for employment with Accucare Medical and Pain Management Center in New Jersey, which hired another doctor. Plaintiff asserts that the statements made to the FCVS will continue to be published each time a request is made for information about him in connection with prospective employment or medical licensure. Plaintiff claims that as a result, he has suffered loss of income, a loss of prestige and standing as a physician, and mental anguish, and seeks compensatory damages of $9 million and punitive damages of $5 million.

Plaintiff's fifth cause of action alleges that in connection with periodic accreditation of the urology residency training program at Brookdale in 1997 or 1998 and thereafter, defendants knowingly made material misrepresentations to the representatives of the Residency Review Committee of Urology regarding him and his tenure at Brookdale. Plaintiff asserts that these alleged misrepresentations included the assertions that Brookdale's urology department was in compliance with the ACGME Requirements and that his residency training was in accordance therewith. Plaintiff claims that such alleged misrepresentations were made to protect the accreditation of the urology training program at Brookdale and to continue funding for the urology department. Plaintiff seeks compensatory and punitive damages, which, he alleges, resulted from this frustration of the Residency Review Committee of Urology's responsibility to protect him.

With respect to plaintiff's second cause of action, defendants respond that on August 7, 2002, plaintiff executed an "authorization for release of information, documents and records," which authorized every person, institution or hospital and its representatives "to release information, records, transcripts and other documents, concerning [his] professional qualifications and competence, ethics, character and other information pertaining to [him] to the [FCVS]." In this broad general release, plaintiff expressly "extend[ed] absolute immunity to, and release[d], discharge[d] and h[e]ld harmless from any and all liability"all "institutions, hospitals and clinics providing information, [and] their representatives . . . for any acts, communications, reports, records, transcripts, statements, documents, [*11]recommendations or disclosures involving [him], made in good faith and without malice, requested or received by the [FCVS]."

It is well settled that a release and consent to the publication of alleged defamatory matter bars a defamation claim (see Mandelblatt v Perelman, 683 F Supp 379, 383 [SD NY 1988]; Hirschfeld v Institutional Inv., 260 AD2d 171, 172 [1999]; Teneriello v Travelers Cos., 226 AD2d 1137, 1138 [1996]; Park v Lewis, 139 AD2d 961, 962 [1988]). Plaintiff argues, however, that the release is invalid because he was compelled to sign it due to the fact that the documents were required by the New Jersey Board of Medical Examiners in order for him to obtain a medical license in New Jersey.

"The status of the tort of defamation by compelled self-publication' is, at best, unclear under New York law." Ascione v Pfizer, Inc., 312 F Supp 2d 572, n 5 [SD NY 2004], affd 138 Fed Appx 347 [2d Cir 2005]. Even if such cause of action were available in New York, it must be demonstrated that there exists at least a dispute as to the truth of the allegedly derogatory statement. Id. The record establishes that the subject statements were factually accurate and otherwise expressed the opinion of Dr. Kim. Moreover, as explained in Metchick v Bidermann Indus. Corp., 1993 WL 106139, *4 [SDNY 1993], relying upon the Restatement (Second) of Torts § 577 Comment m (1977), critical to the maintenance of a claim of libel based upon compelled self-publication is that the plaintiff lacked awareness of the defamatory nature of the authorized communication. Metchick, 1993 WL 106139, *5. Plaintiff's claim that he was not aware of the allegedly defamatory content of the communications to the FCVS is disingenuous. Since plaintiff was made aware, in 2002, that he had not been promoted in the residency program due to his poor performance, of which he was also made aware throughout his residency, he had reason to anticipate that the statements provided pursuant to his release would not be positive (see Handlin v Burkhart, 220 AD2d 559 [2d Dept 1995]). Accordingly, plaintiffs' second cause of action is not viable as a matter of law.

Moreover, a plaintiff alleging defamation must demonstrate that the communication was false as "[t]ruth provides a complete defense to defamation claims" (Dillon v City of New York, 261 AD2d 34, 39 [1st Dept 1999]). As defendants argue, Dr. Kim's statements contained in the FCVS form were substantially true. Consistent with the evidence submitted by both sides, Dr. Kim truthfully responded "no" on the FCVS form to the question of "[w]as this individual ever placed on probation?" and "yes" with respect to negative responses filed by instructors. Dr. Kim testified that he answered "yes" to the question inquiring as to limitations or special requirements placed on plaintiff because he construed plaintiff's dismissal from the residency program as a limitation or special requirement (Dr. Kim's Dep.Transcript at 332-345). This is not a false statement giving rise to a defamation claim. See Immuno A.G. v Moor-Jankowski, 77 NY2d 235 [1991]; Cooper v. Hodge, 28 AD3d 1149, 1150 [4th Dept 2006].

Finally, even were this Court to find that the statements were susceptible of a defamatory construction, they would not be actionable since defendants' responses on the FCVS form were protected by a qualified privilege (see Roth, 180 AD2d at 435; Meller, 174 AD2d at 375). "The qualified privilege defense cloaks statements, even if defamatory, with a conditional privilege, in order to serve a societal interest in encouraging people who have a legal or moral duty to respond to inquiries to communicate freely" (Norwood v City of New York, 203 AD2d 147, 149 [1994]; see [*12]also Liberman v Gelstein, 80 NY2d 429, 437 [1992]; Stukuls v State of New York, 42 NY2d 272, 278-279 [1977]). "The privilege attaches when the statement is made between individuals who share a common interest and can be overcome only by a showing of malice on the part of the defendant" (Norwood, 203 AD2d at 149; see also Liberman, 80 NY2d at 437). Communications by medical residency programs regarding their residents have been held to be subject to a qualified privilege (see Norwood, 203 AD2d at 149; Roth, 180 AD2d at 435; Meller, 174 AD2d at 375). The communications at issue were made in the context of graduate medical education in relation to licensure and involved complex value judgments made by professionals in the field (see Norwood, 203 AD2d at 149; Roth, 180 AD2d at 435; Meller, 174 AD2d at 375).

It is well settled that "statements made to medical licensing boards . . . about the performance of an employee are subject to [a] qualified privilege" (Qureshi, 430 F Supp 2d at 291; see also Buckley v Litman, 57 NY2d 516, 520 [1982]). There is no credible evidence of actual malice sufficient to defeat such privilege. Accordingly, the statements which are the subject of the second cause of action, made to FCVS, and the third and fourth causes of action, made to the New Jersey Board of Medical Examiners, are protected and these causes of action must be dismissed.

As to plaintiff's fifth cause of action, alleging non-specific "material misrepresentations respecting [plaintiff] and his tenure at the Hospital" "made to representatives of the Residency Review Committee of Urology," (apparently within defendant Hospital), which does not, in any case, meet the pleading requirements of CPLR 3016(a) (see Dillon, 261 AD2d at 38), such statements were also communicated to an entity with a corresponding interest in plaintiff's performance and are thus protected (see Education Law§ 6527 [5]; Cooper, 28 AD3d at 1150; Roth, 180 AD2d at 435; Meller, 174 AD2d at 375). Education Law § 6527 (5) provides that "no cause of action for damages shall arise against, any person . . . or other entity . . . on account of any recommendation or evaluation, regarding the qualifications, fitness, or professional conduct or practices of a physician, to any government agency, medical or specialists society [or] a hospital . . ."(see also Dlugash v South Nassau Communities Hosp., 142 AD2d 710, 710 [1988]; Pappalardo v Meisel, 112 AD2d 277, 278 [1985]).[FN2]

Plaintiff argues that defendants cannot invoke a qualified privilege or Education Law § 6527 (5) because these defenses are affirmative defenses which must be pleaded. While defendants failed to plead this affirmative defense, causing its waiver (see CPLR3018 [b]), " [s]uch . . . waiver. . . may be retracted by [the] assertion of an unpleaded affirmative defense in connection with a summary judgment motion'" (Lerwick v Kelsey, 24 AD3d 918, 919 [2005], quoting Sheils v County of Fulton, 14 AD3d 919, 921 [2005]). Thus, this unpleaded defense may "serve as the basis for an affirmative grant of [summary judgment] relief in the absence of surprise and prejudice, provided that the opposing party has a full opportunity to respond" (Sheils, 14 AD3d at 921; see also Rogoff v San Juan Racing Assn., 54 NY2d 883, 885 [1981]; Brodeur v Hayes, 305 AD2d 754, 755 [2003]). Here, defendants raised this defense of qualified privilege on their motion for summary judgment, affording plaintiff a full opportunity to address it. Therefore, the defense of a qualified privilege may properly be asserted by defendants. [*13]

Since all of the alleged statements at issue are protected by a qualified privilege, no cause of action for defamation can lie against defendants absent proof of actual malice on their part ( see Buckley, 57 NY2d at 521; Roth, 180 AD2d at 435). Plaintiff argues that the statements at issue were made with malice, thereby defeating any qualified privilege that may attach to them. Plaintiff's mere conclusory allegation that Dr. Kim acted with actual malice, however, is insufficient to raise a triable issue of fact (see Roth, 180 AD2d at 435; Hollander v Cayton, 145 AD2d 605, 606 [1988]). Summary judgment dismissing plaintiff's second, third, fourth, and fifth causes of action must, therefore, be granted (see CPLR 3212 [b]; Roth, 180 AD2d at 435; Friedman v Ergin, 110 AD2d 620, 621 [1985], affd 66 NY2d 645 [1985]).

Plaintiff's sixth cause of action for tortious interference with business relations alleges that since September 2002, defendants have "interfered with the business relations existing between [plaintiff] and the New Jersey State Board of Medical Examiners, [FCVS,] and prospective employers, including Accucare Medical and Pain Management Center," for the sole purpose to harm him. Plaintiff alleges that this caused him to lose employment opportunities from prospective employers, and to suffer loss of income and prestige, and emotional distress. In opposition to defendants' motion, plaintiff has not proffered evidence that defendants used wrongful means or acted for the sole purpose of harming plaintiff (see Carvel Corp. v Noonaan, 3NY3d 182, 190-193 [2004]; Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183, 191 [1980]; Krinos Foods, Inc. v Vintage Food Corp., 30 AD3d 332, 333 [2006]; Willis Re Inc. v Hudson, 29 AD3d 489, 490 [2006]; Snyder v Sony Music Entertainment, 252 AD2d 294, 299-300 [1999]; Ticketmaster Corp. v Lidsky, 245 AD2d 142, 143 [1997]). It appears that this claim is actually predicated upon the allegedly defamatory communications which are the basis of the second, third, fourth, and fifth causes of action herein dismissed. It is apparent that these privileged communications were made for the legitimate purpose of verifying plaintiff's competency to practice medicine so as to become licensed. Plaintiff's claim of a sole purpose to harm him is not supported by the facts.

Moreover, since plaintiff has failed to respond to defendants' motion insofar as it seeks dismissal of this claim, the claim is deemed abandoned (see generally Merritt v Raven Co., 271 AD2d 859, 860 [2000]). Thus, dismissal of plaintiff's sixth cause of action is warranted (see CPLR3212 [b]).

Accordingly, defendants' motion for summary judgment dismissing plaintiff's complaint is granted.

This constitutes the decision, order, and judgment of the court.

E N T E R

______________________

J. S. C. Footnotes

Footnote 1:Plaintiff also argues that he was entitled to due process in accordance with the ACGME Requirements which he asserts were made a part of the Resident Agreement specifically citing to the Institutional Organization and Commitment section of the ACGME Requirements, which requires, under "Educational Administration," the "[a]ssurance of an educational environment in which residents may raise and resolve issues without fear of intimidation or retaliation," including: the "[e]stablishment and, implementation of fair institutional policies and procedures for academic or other disciplinary actions taken against residents" (ACGME Requirements I.B. [e] [3], at 29). Plaintiff also cites to the responsibility of a Graduate Medical Education (GME) committee (which monitors the residency education) to assure "that each residency program establishes and implements formal written criteria and processes for the selection, promotion, and dismissal of residents in compliance with both the Institutional and relevant Program Requirements"(ACGME Requirements I.B.[d] at 29), claiming that defendants' failure to provide a written description of required grievance procedures and the criteria and processes for the selection, promotion, and dismissal of residents, violated his rights under his Resident Agreement. It is not permissible, however, for the court to intervene with respect to the establishment and implementation of academic policies (see Moukarzel,235 AD2d at 39; Meller, 174 AD2d at 375). Moreover, there are formal procedures set forth in the ACME Requirements for addressing complaints against Residency Programs and Sponsoring Institutions regarding compliance with these published standards (ACGME Requirements II. E., at 79).

Footnote 2:Any complaints regarding compliance with ACGME standards would properly be addressed to the ACGME Review Committee (see ACGME Requirements II.E. at 79).