Rehab Resources for Physical Therapy, P.C. v Tender Touch Rehab Servs., LLC
Annotate this CaseDecided on November 23, 2015
Supreme Court, Onondaga County
Rehab Resources for Physical Therapy, P.C., Plaintiff,
against
Tender Touch Rehab Services, LLC, FUSION MEDICAL STAFFING, LLC, NATIONAL STAFFING SOLUTIONS, INC., ONWARD HEALTHCARE, INC., KATHY CAPENER, SONIA CHAUBAL, ROBIN KUNICKI, ERIBEL LOPEZ- HERNANDEZ, KIM MAGUIRE, DANIEL POULSEN, TAMARA WILBURN, ALYCIA BOLINSKI, NANCY RICHMAN, JOSHUA LITTLE, CAMILE DUNHAM, PAMELA LITTLE, AND HEATHER WHITEHEAD, Defendants.
2015EF3121
W. Bradley Hunt, Esq.
Mackenzie Hughes, LLP
Attorneys for Plaintiff
Elana Ben-Dov, Esq.
Silverman, Shin, Byrne, & Gilchrest, PLLC
Attorneys for Defendants Tender Touch Rehab Services, LLC, National Staffing Solutions, Inc., Onward Healthcare, Inc., Kathy Capener, Sonia Chaubal, Robin Kunicki, Kim Maguire, Tamara Wilburn, Alycia Bolinski, Nancy Richman, Pamela Little, and Heather Whitehead
Walter Hafner Jr., J.
This matter comes before the Court upon motion of the Defendants, Tender Touch Rehab Services, LLC, National Staffing Solutions, Inc., Onward Healthcare, Inc., Kathy Capener, Sonia Chaubal, Robin Kunicki, Kim Maguire, Tamara Wilburn, Alycia Bolinski, Nancy Richman,Pamela Little, and Heather Whitehead, hereinafter "the Tender Touch Defendants," for an Order dismissing the complaint on the ground that the Plaintiff, Rehab Resources for Physical Therapy, P.C., hereinafter "Rehab Resources," failed to state a claim.
In support of their motion, the Tender Touch Defendants filed an Affirmation of Elana Ben-Dov, Esq., with exhibits and a Memorandum of Law, each dated September 16, 2015. [*2]Rehab Resources filed an Affirmation of W. Bradley Hunt, Esq., with exhibits and a Memorandum of Law each dated October 26, 2015 in opposition to the motion to dismiss. The Tender Touch Defendants, filed a Reply Memorandum of Law dated November 2, 2015.
The Parties appeared by counsel in Onondaga County Supreme Court on November 5, 2015 and were heard. The following reflects the Decision and Order of the Court.
This action was commenced by Summons and Complaint filed on July 21, 2015. Rehab Resources' Complaint alleges, inter alia, that Defendants Kathy Capener, Sonia Chaubal, Robin Kunicki, Kim Maguire, Tamara Wilburn, Alycia Bolinski, Nancy Richman, Pamela Little, and Heather Whitehead were formerly employed by Rehab Resources as therapists. Each were assigned to provide services to non-defendant James Square Health and Rehabilitation Centre, hereinafter "James Square," pursuant to a contract between Rehab Resources and James Square dated November 29, 2012. The contract contained a non-compete provision, in which James Square agreed, "...not to hire any therapist introduced by [Rehab Resources] to [James Square], for a period of two (2) years from the completion of the assignment." (See, James Square Contract, Exhibit A of Affirmation of W. Bradley Hunt, Esq., paragraph 6(e).)
Rehab Resources alleges that James Square terminated the contract effective June 30, 2015 and replaced Rehab Resources with Tender Touch on July 1, 2015. Rehab Resources alleged that Defendants Kathy Capener, Sonia Chaubal, Robin Kunicki, Kim Maguire, Tamara Wilburn, Alycia Bolinski, Nancy Richman, Pamela Little, and Heather Whitehead became employees of Tender Touch on July 1, 2015.
In their First Cause of Action for tortious interference with a Contract, Rehab Resources alleges that Tender Touch, Fusion Medical Staffing, LLC, herein after "Fusion," National Staffing Solutions, Inc., hereinafter "National," and Onward Healthcare, Inc., hereinafter "Onward," "induced James Square to breach the non-compete clause of the contract between Rehab Resources and James Square. Rehab Resources alleges that all of the Defendants were aware of the contract between James Square and Rehab Resources and its non-compete clause. Rehab Resources alleges that James Square is still in breach of the non-compete clause. Rehab Resources alleges that James Square would not have breached the non-compete clause were it not for the tortious interference of Tender Touch, Fusion, National, and/or Onward.
Rehab Resources seeks monetary damages and an Order enjoining Defendants Kathy Capener, Sonia Chaubal, Robin Kunicki, Kim Maguire, Tamara Wilburn, Alycia Bolinski, Nancy Richman, Pamela Little, and Heather Whitehead from providing therapy services to James Square and an Order enjoining Tender Touch, Fusion, National, and Onward from facilitating these therapists to provide therapy at James Square for two years from the termination of the contract.
The Tender Touch Defendants allege in their motion to dismiss and Memorandum of Law, that Rehab Resources has failed to state a claim. The Tender Touch Defendants allege that even if this Court were to find all the allegations in the complaint made by Rehab Resources to be true, the Court must find that Rehab Resources failed to establish that Tender Touch intentionally induced James Square to breach the non-compete clause and/or that James Square actually breached the non-compete clause.
The Tender Touch Defendants, allege Rehab Resources failed to include any factual allegations to support their conclusory claim that the Defendants intentionally induced James [*3]Square to breach the non-compete clause.
The Tender Touch Defendants allege Rehab Resources failed to establish sufficient facts to establish James Square breached the non-compete clause, since James Square has not "hired" any therapists introduced by Rehab Resources.
The Tender Touch Defendants allege that Rehab Resources failed to allege how the alleged breach of contract by James Square resulted in actual damages to Rehab Resources.
Rehab Resources alleges in their Memorandum of Law that the Complaint does allege a breach of contract. Rehab Resources alleges that the language of the non-compete clause should be interpreted by this Court to prohibit James Square's act of allowing the therapists to continue to work at James Square as employees of Tender Touch, Fusion, National or Onward.
Rehab Resources alleges that if the Court were to agree with the Tender Touch Defendants' interpretation of the contract, the non-compete clause would be rendered meaningless, since James Square has never hired therapists in the past.
Rehab Resources alleges the Tender Touch Defendants' allegation that the Complaint fails to include sufficient facts "borders on the frivolous." Rehab Resources alleges the Complaint does allege how Tender Touch interfered with the contract. Rehab Resources alleges that Tender Touch caused their therapists to be hired by James Square through Tender Touch and the other staffing companies following James Square's termination of the contract. Rehab Resources alleges they adequately set forth their damages in the complaint. Rehab Resources alleges that they have been damaged since James Square hired Rehab Resource's therapists without paying Rehab Resources. Rehab Resources alleges they have been damaged due to the loss of substantial investment in hiring and performing background checks on the therapists.
In their Reply Memorandum of Law, the Tender Touch Defendants allege, in sum and substance, that the word "hire" in the contract should be interpreted by the Court to mean only the direct hiring of the therapists by James Square. The Tender Touch Defendants allege a reasonable interpretation of the non-compete clause is that it restricted James Square from creating its own internal rehabilitation department with Rehab Resource's therapists and eliminating Rehab Resources as a vendor. The Tender Touch Defendants allege that interpretation would not render the non-compete clause meaningless, as alleged by Rehab Resources. The Tender Touch Defendants allege that if Rehab Resources desired a covenant that prohibited James Square from indirectly using the therapists introduced by Rehab Resources through other agencies, they should have expressly negotiated for those terms and the contractual language should have clearly set forth the prohibition.
The Tender Touch Defendants allege that Rehab Resources failed to allege any facts to support their claim that Tender Touch or any other Defendant did anything to intentionally interfere with the non-compete clause. The Tender Touch Defendants allege that Rehab Resources has not alleged that any of the therapists signed any restrictive covenants.
The Court finds the Defendants' motion to dismiss the Complaint pursuant to CPLR §3211(a)(7) for failure to state a cause of action should be denied.
In Liberty Affordable Housing, Inc. v. Maple Court Apartments, the Appellate Division, Fourth Department recently held, citing, Rovello v Orofino Realty Co., 40 NY2d 633, "summary dismissal is appropriate under CPLR 3211 (a) (7) when the defendant's evidentiary submissions establish conclusively that plaintiff has no cause of action. The Court noted that "modern [*4]pleading rules are designed to focus attention on whether the pleader has a cause of action rather than on whether he has properly stated one." Liberty, supra. It further cited Rovello, in which the Court held, "evidentiary submissions may only be considered for a limited purpose in assessing the facial sufficiency of a civil complaint, Liberty, supra., citing Rovello, at 636.
The Court in Liberty held, "This "limited purpose," Rovello explained, is twofold. On the one hand, affidavits submitted by the defendant [as movant] will seldom, if ever, warrant the relief sought under CPLR 3211(a)(7) unless the affidavits establish conclusively that plaintiff has no cause of action. On the other hand, the nonmoving party may "freely" submit evidentiary materials to preserve inartfully pleaded, but potentially meritorious, claims, Liberty, supra., citing Rovello at 635.
The Court in Liberty, citing the Court of Appeals, noted that dismissal should . . . "eventuate only when the defendant's evidentiary affidavits show that a material fact as claimed by the pleader to be one is not a fact at all and . . . that no significant dispute exists regarding it." It further held "that evidentiary submissions may only be considered for a limited purpose of assessing the facial sufficiency of a civil complaint.
The Complaint alleges the Tender Touch Defendants were aware of the contract between James Square and Rehab Resources, including the non-compete clause. It further alleges the Tender Touch Defendants engaged in tortious interference with a contract by intentionally inducing James Square to breach the non-compete clause by hiring former Rehab Resources therapists and assigning them to work at James Square. The Court finds the Tender Touch Defendants have not submitted evidence that conclusively establishes that this allegation is not true. The Court finds discovery is necessary to resolve this issue.
The Court further finds the Tender Touch Defendants have failed to submit any evidence from any representative of James Square tending to support the Tender Touch Defendants' interpretation of the non-compete clause. Simply put, the issue of whether James Square believed, at the time the contract was signed, that the non-compete clause did not prohibit the use of the former Rehab Resources therapists through employment agencies, has not been established by the Tender Touch Defendants. The Court finds further facts are needed to decide this issue of law. Those facts can only be developed through discovery.
The Court finds that the Complaint sufficiently alleges how Rehab Resources incurred damages as a result of the alleged tortious interference by the Tender Touch Defendants. Rehab Resources alleges they incurred expenses under the terms of the Contract to qualify the therapists to work at James Square. They also now are not being compensated for the services of the therapists they introduced to James Square and have no ability to assign the therapists to other clients.
For all these reasons, the Tender Touch Defendants' motion to dismiss is DENIED. This constitutes the Decision and Order of the Court.
Dated: November 23, 2015
ENTER,
______________________________
HON. WALTER HAFNER, JR.
ACTING SUPREME COURT JUSTICE
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