Malik v New York Presbyt. Brooklyn Methodist Hosp.

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Malik v New York Presbyt. Brooklyn Methodist Hosp. 2020 NY Slip Op 32675(U) August 17, 2020 Supreme Court, Kings County Docket Number: 508226/18 Judge: Lawrence S. Knipel Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [* 1] INDEX NO. 508226/2018 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 08/17/2020 At an IAS 'rerm, Part 57 of the Supre1ne Court oftl1e State ofNe\V York, held in and for tl1e Co"Unty of Kings, at tl1e Courthouse, at Civic Center, Brookly11, Ne\¥ York, on the 17'" day of August, 2020. PRES ENT: HON. LA WREN CE KNIPEL, J11stice. --- - - - - -- - - -- - - - - - - -- - -- - - -- - - - -- - - - -X ABDUL Q. MALIK, M.D. AND ABDUL MALIK, PHYSICIAN, P.C., Plaintifl: Index No.508226/18 - against NEW YORK PRESBYTERIAN 8ROOI(LYN METHODIST }-]OSPITAL F/I</A NE\\/ YORK METHODIST f.lOSPITAJ,.,, Defe11dant. --- - --- -- -- -- - - - -- - -- - - - - - -- - -- -- - - - -X NYSCEF Doc No The following e'"·filed papers read herein: Notice of Motion/Order to Show Cause/ Petition/Cross Motio11 and Affidavits (Aflir1nations) Annexed~-------Opposing Affidavits (Affir1nations) _ _ _ _ _ _ _ __ Repl)' Affidavits (Affir111ations) _ _ _ _ _ _ _ _ __ 36-44 45-46 47 ----~Affidavit (Affir111ation). _ _ _ _ _ _ __ Other Papers,_ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Upon the foregoing papers defendant New York Presbyte!'ian Brooklyn Methodist Hospital f/k/a New York Methodist Hospital (defendant) moves for an order, pursuant to CPLR 2221, granting it leave to reargue this Court's October 23, 2019 decision and order den.ying its mot} on to dismiss the co1nplaint, and upon granting leave to reargt1e, granting the 1notion to dismiss in its entirety. 1 of 11 [* 2] INDEX NO. 508226/2018 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 08/17/2020 Backgrgund and Procedural History The facts underlying the instant matter are as follows. On or about July I, 2010, defendant and plaintiff Abdul Malik Physician, P.C. (the PC) entered into a Services Agreeme11t (tl1e agree1nent),pursuant to \vl1icl1 the PC was "to provide certain adn1i11istrative, supervisory and teaching services in the I-Iospital 's Depart1nent ofMedicine'' and "to employ or retain, at its expens_e, two (2) "P.C." Cardiologists to discharge its duties under this Agree1nent." The PC was to ensure "that all duties perfonned and services provided shall be in accordance with the NYMH Policies and Applicable Law." Defendant agreed to compensate the PC $150,000 annually, in monthly increments of$12,500. The agreement was in effect for one year terms, commencing on September 1, 2010, and auto1natically renev..ring for one year terms unless othenvise 1nodified or terminated. On March 25, 2015, plaintiff Dr. Malik was indicted on twelve counts related to alleged Medicaid fraud co11nected to his work perfonning re1note reading services to Ultraline Medical Testing P.C. On or about April I, 2015, defendant sent Dr. Malik a letter stating "in accordance with Article VII, Section 2 of the bylaws of the medical staff ofNew York Methodist Hospital, that effective immediately all of your clinical privileges are summarily suspended." Defendant contends that it also sent a letter to the PC on that-date, notifying it that it was terminating the agreement effective immediately "[i]n light of [Malik's] suspension from the Medical Staff of the New York Methodist Hospital." By letter dated April 25, 2015, defendant informed Dr. Malik that it would lift the suspension of his staff111e1nbership and clinical privileges and gra11t his request to be placed on a leave of absence. On November 30, 2016, the Kings County District Attorney dismissed the indictment against Dr. Malik and exonerated him, noting that his credentials had been stolen and that he was an innocent victi1n in a fraud sche1ne. 2 2 of 11 [* 3] INDEX NO. 508226/2018 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 08/17/2020 Plaintiffs co1nmenced the instant action by filing a st1m1nons and co1nplaint on or about April 23, 2018. The complaint alleged three cause of action sounding in breach of contracUbreach of covenant of goof faith and fair dealing, tortious interference and unjust enriclunent. On or about August 21, 2019, defendant filed a pre-answer 1notion to dis1niss pursuant to CPLR 3211 (a) (1) and (a) (7), arguing that plaintiffs failed to state a cause of action on any of the alleged· claims. 1 This court) in an October 23, 2019 decision and order, denied defendant's pre-answer inotion to dis1niss finding that there was otttstanding apparent contractual issues and dispttted docu1nentary evidence v·vhich precluded the requested relief~ Defendant's Motion Defendant contends that reargument is warranted as the court overlook.ed and/or misapprehended the facts and/or law when rendering the October 23, 2019 decision and order and, that upon reargtnnent, its' inotion to dismiss should be granted. Legal Standards Motion to Reargue Pursuant to CPLR 2221 (ct) (2), a motion to reargue is "based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion." "While the deter1nination to grant leave to reargue a motion lies \Vithin the sou11d discretion of the cot1rt, a 1notion for leave to reargue is not designed to provide an unsuccessful party with successive opportunities to reargue issues previously decided" (Arztl1ony J. Carter, DDS, P. C. v Carter, 81 AD3d 819. 820 [2011] [internal citations and quotations marks omitted]; Williams v A biomed, Inc., 173 AD3d 1115, 1116 [2019]). 1 The court notes· that the parties entered into several stipulations extending defendant's time to ans1,.ver the co1nplaint. 3 3 of 11 [* 4] INDEX NO. 508226/2018 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 08/17/2020 Motion to Dismiss "In considering a motion to dis111iss for failure to state a cause of action p11rs11ant to CPLR321 l(a)(7), the court must 'accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory'" (Patel v Gardens at Fore.<t Hills Owners Corp., 181AD3d611 [2020], quotingNonnon v City ofNew York, 9 NY3d 825, 827 [2007], quoting Leon v Martinez, 84 NY2d 83., 87-88 [1994]). The pe11inent issue is whether the plaintiff has a cause of action, not \Vhether one has been stated in the complaint (see Guggenheimerv Ginzburg. 43 NY2d 268, 274-275 [1977]; Doe v Ascend Charter Schs., 18 l AD3d 648, (2020]; Tilford v GreenburghHous. Auth., 170 AD3d 1233, 1234-1235 [2019]). l~urther, "the fact11al allegations in the pleading must be deemed tr11e, and the petitioner in11st be afforded the benefit of every favorable inference" (Matter ofPalmore v Board ofEduc. ofHempstead Union Free Sch. Dist., I 45 AD3d 1072, 1073 [2016]). "Therefore, a complaint is legally sufficient if the court determines that a plaintiff would be entitled to relief on any reasonable view of the facts stated" (Dee v Rakower, 112 AD3d 204, 208 [20!3][citations 01nitted]). ''Whether 'the complaint will later survive a 1notion for sum1nary judg1nent, or whether the plaintiff will ultimately be able to prove its clai1ns, of course, plays no part in the deter1nination of a prediscovery CPLR 3211 motion to dismiss'" (Victor;; State Bank v EMBA Hylan, LLC, 169 AD3d 963, 965 [2019], quotingShayaB. Pac., LLCv Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 AD3d 34, 38 [2006]; see Mirro v City ofNew York, 159 AD3d 964, 966 [2018]). The court may consider evidentiary material submitted by a defendant in support of a motion to dismiss pursuant to CPLR 3211 (a) (7) (see Sokol v Leader, 74 AD3d 1180, 1181 [2010]; CPLR 3211 [c]; Phillips v Taco Bell Corp., l 52 AD3d 806, 807-808 [2017]). 4 4 of 11 [* 5] INDEX NO. 508226/2018 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 08/17/2020 A motion to dismiss under CPLR 3211 (a) (1) "may be appropriately granted only where the docu1nentary evide11ce t1tterly refutes plaintitl's factual allegations, conclusivel)1 establishing a defense as a matter oflaw" (Goshen v Mutual Life Ins. ofNew York, 98 NY2d 314, 326 [2002]). The documentary evidence must "resolv[e] all factual issues as a matter oflaw and conclusively dispose[] of the plaintiffs claim" (Palmetto Partners, LP. v AJW Qualified Partners, LLC, 83 AD3d 804, 806 [2011], quoting Paramount Transp. Sys., Inc. v laser/one Corp., 76 AD3d 519, 520 [2010]; see Goshen, 98 NY2d at326; Leon, 84 NY2d at 88). l"o qtralify as documentary evidence, the evidence "mtrst be una1nbigt1ous and of undisputed authenticity" (Nero v Fiore, 165 AD3d 823, 826 [2018], quoting Fontanetta v John Doe 1, 73 AD3d 78, 86 [2010]; see Flushing Sav. Bank, FSBv Siunykalimi, 94 AD3d 807, 808[2012]; Granada Condominium Ill Assn. v Palomino, 78 AD3d 996, 996-997 [20 l OJ). "[J]udicial records, as well as documents reflecting out-of-court transactions such as n101igages, deeds, contracts, and any otl1er papers, the contents ofwhicl1 are essentially undeniable, \VOuld q11alify as documentary evidence in tl1e proper case" (Fontanetta, 73 AD3d at 84-85 [internal citation omitted]; see L&S Motors, Inc., v Broacfview Neh11,or/(s, !11c., 25 AD3d 767, 767 [2006] ). "Conversely, letters, emails, and at1idavits fail to meet the require1nents for documentary evidence" (25-0 I Newkirk: Ave., LLC v Everest Natl. Ins. Co., 127 AD3d 850, 851 [2015]). The court exercises its discretion to allow reargument (see CPLR 2221 [dl [2J; AnthonyJ. Carter, DDS., P.C., 81 AD3d at 820). Upon reargument, the com1 decides as follows. Breach of Contract/Breach of Covenant of Good Faith and Fair Dealing Witl1 regard to plaintiffs breach of contract clai1n, defendant argues that the co11rt overlooked that plaintiff failed to plead performance of the contract by one party and breach 5 5 of 11 [* 6] INDEX NO. 508226/2018 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 08/17/2020 by the other party. In this regard, defendant argues that plaintiff merely stated that it re1nained ready, willing and able to perfor1u under t11e agree1nent and that this does not equate to its actual perfor111ance 11nder the contract. With regard to the allegation that defendant breached its duty by failing to make payments to the PC from April 2015 on, defendant asserts that the agreement specifically provided for monthly payment of $12,500 to the extent that the services under the agree1nent were provided by the PC, and inas1nuch as plaintiffs were unable to provide the services, defendanttenninated the agreement and was under no obligation to tender such payment . . In opposition to this branch of defendant's 1notion, plaintiffs argt1e that defendant's wrongful repudiation alleviated the require1nent for plaintiffs to tender perfonnance or prove ability to perform. Plaintiffs argue that the doctrine of antici_patory breach excuses co1npletion of perfor1nance in the face of repudiation. Plaintitfs contend that the agree1nent was never properly ter1ninated pursuant to its explicit ter1ns. In this regard, plaintiffs dispute that they ever received notice that defendant had ter111inated the agreement and that the PC was i11 violation of any terms oftl1e agree1ne11t that would permit a ter1nination. In reply, defendant maintains that it was under no obligation to pay until the PC rendered services. Defendant 1naintains that it is irrelevant whether plaintiffs could have performed in the future and that it was the actual fail11re to perform pursuant to the ter1ns of the agree1nent that absolved defendant of its pay1nent obligation. "The essential elements of a breach of contract ca11se of action are "the existence of a contract, the plaintiff's perfonnance tinder t11e contract, the deftindant's breach of that contract, and resulting damages" (Liberty Equity Restoration Corp. v Pi/ Soung Park, 160 AD3d 628, 630 [2018]; see Hausen v North Fork Radiology, P.C., 171 AD3d 888, 892 [2019]; De Guaman v American Hope Group, 163 AD3d 915, 917 [2018]; Elisa Dreier 6 6 of 11 [* 7] INDEX NO. 508226/2018 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 08/17/2020 Reporting Corp. v Global NAPs Networks, Inc., 84 AD3d 122, 127 [2011 ]). Importantly, a cause of action to recover da111ages for breach of the iinplied covenant of good' faith and fair dealing cannot be inaintained where tl1e alleged breach is '\intri11sically tied to tl1e damages allegedly resulting from a breach of the contract" (Deer Park Enters., LLC v. Ail Sys., Inc., 57 AD3d 71 l, 712 [2008], quoting CanstarvJones Constr. Co., 212 AD2d 452, 453 [1995]; see Hawthorne Group v RRE Ventures, 7 AD3d 320, 323 [2004]). Based upon the foregoing principles, the court finds that, within its four corners, tl1e complaint sufficie11tly alleges the elements ot· a breach of contract cause of action agai11st defendant necessary to survive a motion to dismiss pursuant to CPLR 3211 (a) (7) (see Magee-Boyle v Reliastar Life Ins. Co. qf NY., 173 AD3d 1157, 1159 [2019]; Guido v Orange Regional Med. Ctr., 102 AD3d 828, 832 [2013];Dee, 112 AD3d at208). Moreover, the court finds that defendant has failed to sub1nit docu1nentary evidence which utterly refUtes plaintiffs' factual allegations, conclusively establishing a defense as a matter of law within the intendment ofCPLR 321 l(a)(l) (see Bonavita v Government Employees Ins. Co., _ AD3d _, 2020 N.Y. App. Div. LEXIS 4256, *4, 2020 NY Slip Op 04144: County of Westchester v Unity Mech. Corp., 165 AD3d 883, 885 [2018]; Attias v Costiera, 120 AD3d 1281, 1282-1283 [2014]). Accordingly, upon reargument the court adheres to its original decision in regard to plaintit1S' breach of contract claim. Tortious Jnterfetence wit/1 Co11tract Defendant asserts that this court's Oetober23, 2019 order failed to address "plaintiffs' tortious interference cause of-action, a clai1n that is entirely distin-ct fro1n the "contract11al issues and docu1nentary issues" identified in the order." Defendant asserts that plaintiff never plead the existence of' a contractual relationship between plaintiff and a third-party 7 7 of 11 [* 8] INDEX NO. 508226/2018 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 08/17/2020 and/or defendant's intentional inducement of the third-party to breach. Specifically, defendant argues that, to the extent that plaintiffs' claim t11at defendant interfered with its on- -going relationship \vitl1 patients ofthe PC, doctor-patient relationships are not contractual but rather are at-will and can not for1n tl1e predicate for a tortious interference witl1 contract clai1n. Additionally, defendant points out that a showing of wrongful conduct is reqt1ired and that here, plaintiffs inerely assert that one of defendant's staff 1ne1nbers stated, in the presence of plaintiffs' patient, that "Dr. Malik vvas a cri111inal.'' Defendant notes that plaintiffs fail to: identify the staff111ember, whether the comment \Vas made in tl1e course of or in furtherance of their e1nployinentfor defendant and any basis for i1nputi11g said state1nent to defendant. Moreover, defendant argues that in any event the comn1ent would not rise to the ~evcl of wrongful conduct inas1nuch as it was not a misrepresentation as Dr. Malik had. indeed been indicted on 11111ltiple crhninal counts. In opposition, plaintiffs argue that the court did not overlook any of defendant's argu1ne11ts in this regard, b11t rather just found them to be unpersuasive. Plaintiffs argue that it properly plead that they had on-going relationships with their patients which is separate and apart fron1 the det'endant. In addition, plaintiffs maintain that referring to Dr. Malik as a cri1ninal is wrongful and actio11able conduct. In reply, defendant reiterates that at-will doctor-patient agree1nents can11ot for1n tl1e predicate for the existence of a co11tract needed for a tortious interference clai1n. Moreover, defendant contends that plaintiffs have failed to allege wrongful conduct on the part of defendant solely for the purpose of injuring the plaintiffs. "Tl1e ele1ne11ts of tortious interference with a contract are: "(l) tl1e existence of a contract between plaintiff and a third party; (2) defendant's knowledge of the contract; (3) defendant's intentional inducement of the third party to breach or otherwise render 8 8 of 11 [* 9] INDEX NO. 508226/2018 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 08/17/2020 performance impossible; and (4) damages to plaintiff' (Kimso Apts., LLC v Rivera, 180 AD3d 1033, 1035 [2020], quotingKronos, Inc. vAVXCorp., 81NY2d90, 94 [1993]; see Nero v Fiore, 165 AD3d 823, 825 [2018]; Pacific Carlton Dev. Corp. v 752 Pac .. LLC, 62 AD3d 677, 679 [2009]). The plaintiff must also establish that the defendant's actions were intentional and "without justification" (Lama Holding Co. vSmith Barney, 88 NY2d 413, 424 [1996]; see Ferrandino & Son, Inc. v Wheaton Bldrs., Inc., LLC, 82 AD3d 1035, 1036 [2011]). "Although on a motion to dismiss the allegations in a complaint should be construed liberally, to avoid dis1nissal of a tortious i11terference with contract rcause of action], a plaintiff1nt1st support his [or her cause of action] with more than in ere speculation" (Kimso Apts., LLC, 180 AD3d at 1035, quoting Burrowes v Combs, 25 AD3d 370, 373 [2006]; see Ferrandino & Son, Inc., LLC, 82 AD3d at 1036]; R.1. Is. House. LLC v North Town Phase II Houses, Inc., 51 AD3d 890, 895-896 [2008]). Accordingly, upon reargu1nent the court reverses its original decision in regard to plaintiffs' tortious interference clai1n and that branch of defendant's 1notion seeking to dismiss this claim is granted (see MJ. & K. Co. v Matthew Bender & Co., 220 AD2d 488, 490 [1995] [holding that ''plaintiffs' mere contentions that third parties cancelled contracts with them because of the alleged defamatory remarks made by . . . [defendant's] representatives, offered witl1 no factual basis to support the allegations, ·was insufficient to state a cause of action for tortious i11terference with contractual relations"]; see also J.M Bldrs. & Assoc., Inc. v Lindner, 67 AD3d 738, 741 [2009]; Newport Serv. & Leasing, Inc. v MeadowbrookDisrrib. Corp., 18 AD3d 454, 455 [2005]; Simaee v Levi, 22 AD3d 559,563 [2005][holding that a "cause of action, alleging tortious interference with physician/patient relationships, was ... correctly dismissed ... as there was no allegation that plaintiff had "an independent contractual relationship with the patients of these entities which \Vould give rise 9 9 of 11 [* 10] INDEX NO. 508226/2018 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 08/17/2020 to a pecuniary interest in these relationships"]; Bronx-Lebanon Hosp. Ctr. v Wiznia, 284 AD2d 265, 266 [2001]). Unjust Enrichme11t Finally, defendant claims that this court overlooked the applicable law warranting dismissal of plaintiffs' unjust enrich1nent claiI11, In this regard, defendant argues that its response to Dr. Malik's indictment was appropriate and justified in order to protect patients. More_over, defenda11t asserts and that it would have been against good conscience to allo\V a criininall)' indicted physician to continue treating patients. In opposition, plaintiffs argue that they have alleged that after defendant breached its agreement with the PC. defendant continued to provide services to plaintiffs' patients after it restricted plaintiffs_fro1n providing these_ services. Plaintiffs contend that defendant was unjustly enricl1ed by retaining 1noney for tl1ese services that plaintiffs should have been given an opportunity to provide. In reply. defendant argues that plaintiffs' pleading ofthis claim lacks any showing that the alleged benefit conferred 011 defendant was under mistal<e or based on fraudulent conduct. Moreover, defendant 11otes that plaintiffs were not prevented by defendant fro1n ernployiJ1g another PC cardiologist to discharge its duties under the agree1nent. "To adequately plead such a cause of action [for unjust enrichtnent], a plaintiff 1nust allege that '(l) the other party was enriched, (2) at that party's expense, and (3) that it is against equity and good conscience to perrnit the other party to retain what is sought to be recovered"' (Mannino v Passalacqua, 172 AD3d 1190, 1193 [2019], quoting Mandarin Trading Ltd. v Wildenstein, l 6NY3d 173, 182 [201 I] [internal quotation marks and brackets omitted]; see Georgia Malone & Co., Inc. v Rieder, 19 NY3d 511, 5 l6 [2012]). However. the Court of Appeals in Clark-Fitzpatrick, Inc. v Long Is. R.R. Co., (70 NY2d 382 [1987]), IO 10 of 11 [* 11] INDEX NO. 508226/2018 NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 08/17/2020 held that ''[t]he existence ofa valid and enforceable written co11tract governing a particular subject 1natter ordinarily precludes recovery in quasi contract for events arising out of the same sttbject inatter ... [a] quasi contract only applies in the absence of an express agreement, and is not really a contract at all, but rather a legal obligation iinposed in order to prevent a party's unjust enrichment. , , ,"(see D, Gangi Contr. Corp. v City o[New York,_ AD3d _ [2020], 2020 NY Slip Qp 04378, 1-2]; Goldstein v CIBC World Mias. Corp., 6 AD3d 295, 296 [2004] [11 A claim for unjust enrichment, or quasi contract~ may not be maintained where a contract exists between the parties covering the sa1ne subject 1natter11 ] ; Scave11ger, Inc. v GT Interactive Sojiware Corp., 289 AD2d 58, 59 [2001). Here it is undisputed that a contract exists between the parties .covering the subject 1natter of this claim. Accordingly) upo11 reargu1nent the court reverses its original decision in regard to plaintiffs' t1njt1st enrichment claim and that branch of defendant's motion seeking to distniss this claim is granted (see Clark-Fitzpatrick, Inc., 70 NY2d at 388). The foregoing constitutes the decision and order oftl1e court. Justice LalNrence Knipe\ 11 11 of 11

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