| William J. DeTorres III, M.D., P.C. v Claxton-Hepburn Med.Ctr. |
| 2009 NY Slip Op 06100 [65 AD3d 733] |
| August 6, 2009 |
| Appellate Division, Third Department |
| William J. DeTorres III, M.D., P.C., Appellant, v Claxton-HepburnMedical Center, Respondent. |
—[*1] Hancock & Estabrook, L.L.P., Syracuse (Janet D. Callahan of counsel), forrespondent.
Rose, J. Appeal from an order of the Supreme Court (Demarest, J.), entered May 8, 2008 inSt. Lawrence County, which, among other things, partially granted defendant's motion to dismissthe complaint.
Plaintiff entered into a "Hospitalist Physician Services Agreement" with defendant, acommunity hospital, obligating plaintiff's principal to, among other things, be on-site andavailable to provide medical services to emergency department patients who have no assignedphysician as well as others whose attending physicians were unavailable. Defendant was awarethat plaintiff's principal was a disqualified Medicaid provider, and the agreement did not requirehim to be a Medicaid provider. Nevertheless, the medical services that he was required toperform were not limited to non-Medicaid patients, and the agreement included a provision thatgave defendant the right to terminate the agreement "without liability, if on the advice of itscounsel it determines in its reasonable judgment that the terms of this Agreement more likelythan not may be interpreted to violate any present or proposed future law or regulation." Relyingon this provision, defendant subsequently terminated the agreement. Plaintiff then commencedthis action alleging, among other things, breach of contract. When Supreme Court granteddefendant's motion to dismiss the complaint based upon a defense founded on documentaryevidence (see CPLR 3211 [a] [1]), this appeal ensued.[*2]
Inasmuch as plaintiff does not dispute that its principalwas a disqualified Medicaid provider, documentary evidence clearly supports Supreme Court'sconclusion that defendant exercised its reasonable judgment when it determined on the advice ofcounsel that the agreement would likely violate a Medicaid regulation. Defendant's evidence insupport of its motion included a Medicaid publication with the headline "Disqualified ProviderList/Do Not Hire[ ]," which it received soon after hiring plaintiff and which strongly advisedagainst hiring disqualified providers. Defendant also cited the Medicaid regulation whichprovides for monetary sanctions against a provider where a disqualified person is involved in anyaspect of the care of a Medicaid patient (see 18 NYCRR 515.5). While plaintiff contendsthat the agreement did not expressly require it to provide medical care to Medicaid patients andthat defendant could have avoided a penalty by having plaintiff serve only non-Medicaidpatients, the agreement clearly obligated plaintiff to serve unattended patients without any suchrestriction. As for plaintiff's argument that defendant's exercise of its judgment under theagreement was not objectively reasonable, we conclude that, as a matter of law, defendantdemonstrated good cause, and that this constitutes an objectively reasonable basis for itsdetermination (see Scott v Beth Israel Med. Ctr.,Inc., 47 AD3d 541, 541 [2008]; Trieger v Montefiore Med. Ctr., 15 AD3d 175, 176 [2005], lvdenied 4 NY3d 710 [2005]; compare Weston v Cornell Univ., 56 AD3d 1074, 1076 [2008]).
Finally, because plaintiff raises no argument as to the dismissal of its other causes of actionor its claim for breach of two other agreements with defendant, those issues are abandoned(see Amo v Little Rapids Corp., 301 AD2d 698, 702 n 3 [2003], appeal dismissedand lv denied 100 NY2d 531 [2003]; Blumenkrantz v May, 293 AD2d 850, 852-853[2002]).
Mercure, J.P., Kane, Kavanagh and Garry, JJ., concur. Ordered that the order is affirmed,with costs.