| Pandian v New York Health & Hosps. Corp. |
| 2008 NY Slip Op 06877 [54 AD3d 590] |
| September 16, 2008 |
| Appellate Division, First Department |
| Kanagaraj Pandian, M.D., Appellant, v New York Healthand Hospitals Corporation et al., Respondents. |
—[*1] Michael A. Cardozo, Corporation Counsel, New York (Christopher M. Yapchanyk ofcounsel), for respondents.
Order, Supreme Court, Bronx County (Douglas E. McKeon, J.), entered on or aboutNovember 2, 2006, which granted defendants' motion to dismiss the complaint, unanimouslyaffirmed, without costs.
Plaintiff, an anesthesiology resident in defendant Medical College, received negativeperformance evaluations both before and after an incident in which he was reported to havefallen asleep during surgery. The parties orally agreed that plaintiff would resign in exchange forwithdrawal of disciplinary charges against him, and a promise of a "neutral" reference in theevent of an employment or other residency inquiry.
Plaintiff's contract claim nowhere alleged that defendants agreed not to mention the incidentin the evaluations they sent to the American Board of Anesthesiologists. Indeed, since theMedical College was required to provide evaluations to the Board in order to ensure thecompetency of anesthesiologists, an agreement such as that advocated by plaintiff would beagainst public policy and would subvert the purpose of evaluating residents. Furthermore,plaintiff has not shown damages; he has not been denied employment or a medical licensebecause of the negative evaluation, and only speculates that such would be the case. The claimwas also barred by the statute of frauds, which requires a writing where a contract, by its terms,"is not to be performed within one year from the making thereof" (General Obligations Law§ 5-701 [a] [1]).
The defamation claim failed to demonstrate a triable issue of fact as to whether defendantswere motivated by actual malice in making the negative statements in plaintiff's evaluations(see Kasachkoff v City of New York, 107 AD2d 130 [1985], affd 68 NY2d 654[1986]). The prima facie tort claim failed to raise an issue of fact as to whether malevolence wasthe sole motive for defendants' otherwise lawful act (see Slifer-Weickel, Inc. v MeteorSkelly, 140 AD2d 320, 322-323 [1988]). The claim for interference with prospectiveeconomic advantage failed to allege a motive of malice or the infliction of injury by unlawfulmeans other than self-interest or other economic considerations (see Matter of EntertainmentPartners Group v Davis, 198 AD2d 63, 64 [1993]). Plaintiff similarly failed to demonstrateconduct so outrageous in [*2]character, and so extreme in degree,as to constitute intentional infliction of emotional distress (see Murphy v American HomeProds. Corp., 58 NY2d 293 [1983]). The allegations against Dr. Frost were unsubstantiatedand belied by the record.
Finally, we reject the contention that the court should have dismissed defendants' motion forfailure to annex their answer to the initial moving papers, inasmuch as the responsive pleadingwas attached to the reply papers (seeWelch v Hauck, 18 AD3d 1096, 1098 [2005], lv denied 5 NY3d 708 [2005]).Concur—Gonzalez, J.P., Buckley, Moskowitz, Renwick and DeGrasse, JJ.