| Deshpande v Medisys Health Network, Inc. |
| 2010 NY Slip Op 00919 [70 AD3d 760] |
| February 9, 2010 |
| Appellate Division, Second Department |
| Satish Deshpande, Appellant, v Medisys Health Network,Inc., et al., Respondents. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York, N.Y. (Ricki E. Roer andCelena R. Mayo of counsel), for respondents Medisys Health Network, Inc., Jamaica HospitalMedical Center, David Rosen, Thomas Santucci, Jr., and Richard Pinsker. Kaufman Borgeest & Ryan LLP, New York, N.Y. (Joan Gilbride of counsel), for respondentAccreditation Council on Graduate Medical Education.
In an action, inter alia, to recover damages for violation of Labor Law § 741, theplaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, QueensCounty (Markey, J.), dated October 6, 2008, as granted the motion of the defendants MedisysHealth Network, Inc., Jamaica Hospital Medical Center, David Rosen, Thomas Santucci, Jr., andRichard Pinsker to dismiss the complaint insofar as asserted against them pursuant to CPLR3211 (a) (2) and (7) and to enjoin him from commencing further litigation against them withoutthe permission of the court, and granted that branch of the separate motion of the defendantAccreditation Council on Graduate Medical Education which was to dismiss the fourth cause ofaction pursuant to CPLR 3211 (a) (2) and (7).
Ordered that the order is modified, on the law, by deleting the provision thereof granting thatbranch of the motion of the defendants Medisys Health Network, Inc., Jamaica Hospital MedicalCenter, David Rosen, Thomas Santucci, Jr., and Richard Pinsker which was to enjoin theplaintiff from commencing further litigation against them without the permission of the court,and substituting therefor a provision denying that branch of the motion; as so modified, the orderis affirmed insofar as appealed from, with one bill of costs to the defendants appearing separatelyand filing separate briefs.
The plaintiff, a physician, alleged that he received a letter terminating him from his salariedposition with a subsidiary of Jamaica Hospital Medical Center (hereinafter the Hospital) on orabout December 31, 2004. According to the plaintiff, this letter stated that his hospital privileges"to practice as an independent contractor" at the Hospital would not be curtailed, and hecontinued [*2]to provide medical services at the Hospital as anattending physician. Allegedly, the Hospital, Medisys Health Network, Inc., David Rosen,Thomas Santucci, Jr., and Richard Pinsker (hereinafter collectively the Hospital defendants)curtailed the plaintiff's hospital privileges in November 2005 in retaliation for his complaintsabout improper patient care provided by residents at the Hospital.
The plaintiff commenced this action against the Hospital defendants and AccreditationCouncil on Graduate Medical Education (hereinafter ACGME), an agency which allegedlyaccredited the Hospital's internal medicine residency program. Under the first cause of action, healleged that the Hospital defendants' retaliation violated Labor Law § 741. Under thesecond cause of action, he alleged that the Hospital defendants "violated New York's commonlaw public policy." Under the third cause of action, he alleged that the Hospitaldefendants"breached an implied obligation-in-law and good faith and fair dealing." Under thefourth cause of action, he alleged that ACGME breached its duties of proper accreditation andenforcement and was negligent. The plaintiff sought recovery of damages and did not requestany injunctive relief.
The Hospital defendants moved to dismiss the complaint insofar as asserted against thempursuant to CPLR 3211 (a) (2) and (7) and to enjoin the plaintiff from commencing furtherlitigation against them without the permission of the court. ACGME separately moved, inter alia,to dismiss the fourth cause of action pursuant to CPLR 3211 (a) (2) and (7). The Supreme Courtgranted the motions. We modify.
The Hospital defendants were entitled to dismissal of the first cause of action because theplaintiff failed to state a cause of action for violation of Labor Law § 741. That statuteprohibits retaliatory action against covered employees who disclose or threaten to disclose an"activity, policy or practice of the employer or agent that the employee, in good faith, reasonablybelieves constitutes improper quality of patient care" (Labor Law § 741 [2] [a]; see Luiso v Northern Westchester Hosp.Ctr., 65 AD3d 1296, 1297 [2009]). Here, accepting as true the factual averments of thecomplaint and according the plaintiff the benefit of all favorable inferences (see Schneider vHand, 296 AD2d 454 [2002]), he failed to allege that he was an employee within themeaning of Labor Law § 741 (see Labor Law § 741 [1] [a]; Salimi v New York Methodist Hosp.,45 AD3d 559, 559-560 [2007]). Moreover, the plaintiff failed to cite any "law, rule,regulation or declaratory ruling adopted pursuant to law" (Labor Law § 741 [1] [d]) thathe, in good faith, reasonably believed had been violated (see Labor Law § 741 [2][a]; Luiso v Northern Westchester Hosp. Ctr., 65 AD3d at 1298).
Additionally, the Hospital defendants were entitled to dismissal of the second and thirdcauses of action. No claim to recover damages at common law arises from a hospital's wrongfuldenial of staff privileges (see Lobel vMaimonides Med. Ctr., 39 AD3d 275, 277 [2007]; Mason v Central SuffolkHosp., 305 AD2d 556, 557 [2003], affd 3 NY3d 343 [2004]; Moallem v JamaicaHosp., 264 AD2d 621, 622 [1999]; Farooq v Fillmore Hosp., 172 AD2d 1063[1991]). "[W]here a cause of action is based upon an allegedly wrongful denial of hospitalprivileges, the aggrieved physician is limited to injunctive relief under Public Health Law§ 2801-c and is barred by section 2801-b from maintaining an action for damages"(Lobel v Maimonides Med. Ctr., 39 AD3d at 277; see Moallem v Jamaica Hosp.,264 AD2d at 622).
ACGME was entitled to the dismissal of the fourth cause of action, under which the plaintiffsought to recover damages against ACGME based upon its allegedly negligent accreditation andoversight of the Hospital's internal medicine residency program. "[A] threshold question in tortcases is whether the alleged tortfeasor owed a duty of care to the injured party" (Espinal vMelville Snow Contrs., 98 NY2d 136, 138 [2002]). Although the plaintiff argues thatACGME owed him a duty of care because he was a third party to an "obvious agreement"between ACGME and the Hospital, the allegations in his complaint failed to establish theexistence of any contract between those parties which could give rise to tort liability in favor of athird party (see generally Espinal v Melville Snow Contrs., 98 NY2d at 140).
The Supreme Court should have denied that branch of the Hospital defendants' motion whichwas to enjoin the plaintiff from commencing further litigation against them without thepermission of the court. Public policy generally mandates free access to the courts (see Matter [*3]of Robert v O'Meara, 28 AD3d 567, 568 [2006]), and therecord does not reflect that the plaintiff was abusing the judicial process through vexatiouslitigation (cf. Braten v Finkelstein, 235 AD2d 513, 514 [1997]; Sassower vSignorelli, 99 AD2d 358, 359 [1984]).
The plaintiff's remaining contentions are without merit. Dillon, J.P., Florio, Leventhal andRoman, JJ., concur.