Doris Tamai,
D.O., Plaintiff,
against
Suffolk Anesthesiology Associates, P.C.,
Defendant.
|
601902-15
RUSKIN MOSCOU FALTISCHEK, P.C.
Attorneys for Plaintiff
1425 RXR Plaza
Uniondale, New York 11556
ROSENBERG CALICA & BIRNEY LLP
Attorneys for Defendant
100 Garden City Plaza, Suite 408
Garden City, New York 11530
Elizabeth H. Emerson, J.
Upon the following papers read on these motionsfor preliminary injunction;
summary judgment and to discontinue action ; Notice of Motion and supporting
papers 4-17; 43-47 ; Notice of Cross Motion and supporting papers 19-22
; Answering Affidavits and supporting papers 23-31; 48 ; Replying
Affidavits and supporting papers32-37; 49-50 ; Other41-42 ; it
is,
ORDERED that the motion by the plaintiff for a preliminary
injunction is withdrawn; and it is further
ORDERED that the cross-motion by the defendant, inter
alia, for summary judgment dismissing the complaint is denied as academic; and it is
further
ORDERED that the motion by the plaintiff for an order
discontinuing this action without prejudice is granted.
The plaintiff, an anesthesiologist, was employed by the defendant, Suffolk
Anesthesiology Associates, P.C. ("SAA"). The plaintiff's employment agreement with
SAA prohibited her from holding medical staff privileges at four hospitals in Suffolk
County (St. Charles, Good Samaritan, John T. Mather, and Huntington) for a period of
three years after
leaving SAA. The plaintiff left SAA's employ on January 9, 2015, and was
offered a position
Index No.: 601902-15
Page 2
with Long Island Anesthesia Physicians ("LIAP"), which provided
anesthesiology services at St. Charles and John T. Mather Hospitals. She subsequently
received a letter from SAA, which was copied to LIAP, threatening legal action if she
violated the restrictive covenant. The plaintiff commenced this action, inter alia, for
declaratory and injunctive relief on February 25, 2015, after LIAP withdrew its offer of
employment. She also moved by order to show cause dated February 26, 2014, for a
temporary restraining order, which was granted in part, and a preliminary injunction,
which was set down for a hearing on June 8, 2015. SAA cross moved, inter alia, for
summary judgment dismissing the complaint. By a letter dated April 14, 2015, the
plaintiff advised the court that she had found alternate employment that did not require
her to maintain medical staff privileges at any of the four hospitals named in the
restrictive covenant. She also advised the court that she was withdrawing her motion for
a preliminary injunction and that she was seeking leave to discontinue this action against
SAA without prejudice. By a letter of the same date, SAA objected to discontinuing the
action without prejudice and argued that any discontinuance should be with prejudice.
The plaintiff then moved pursuant to CPLR 3217 (b) to discontinue the action without
prejudice.
In support thereof, the plaintiff contends that, since she has found alternate
employment that does not implicate the restrictive covenant, there is no longer any case
or controversy for the court to decide and that any decision rendered by the court would
be an advisory opinion. SAA contends in opposition that the matter is not moot because
the plaintiff may, at some time in the future, seek employment at any of the four hospitals
named in the restrictive covenant and because another physician-employee with a
different restrictive covenant has left SAA's employ. SAA also contends that any
discontinuance should be with prejudice and that, even if the court discontinues the
action without prejudice, it would still be required to decide SAA's counterclaim for a
judgment declaring the restrictive covenant to be enforceable.
A motion for leave to discontinue litigation pursuant to CPLR 3217 is
addressed to the sound discretion of the court (Brown v Garcia, 2 Misc 3d 915,
917, citing Tucker v [*2]Tucker, 55
NY2d 378, 383). Generally, a party cannot be compelled to litigate a claim; and, absent
special circumstances, a motion for leave to discontinue should be granted without
prejudice (Id.; New York Mortgage Trust, Inc. v Dasdemir, 116 AD3d
679). A plaintiff should be permitted to discontinue an action at any time unless
substantial rights have accrued or an adversary's rights would be prejudiced thereby
(Brown v Garcia, supra, citing Louis R. Shapiro, Inc. v
Milspemes Corp., 20 AD2d 857). Also, the court should consider the stage that the
litigation has reached. The later the stage, the more the court should scrutinize the
plaintiff's motives (White v County of Erie, 309 AD2d 1299, 1301; see
also, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7, CPLR
C3217:12 at 745).
Here, the litigation is still in its infancy and substantial rights have not yet
accrued. The hearing has not been held, and the court has not decided any of the pending
motions. Although discovery was initially expedited, discovery was stayed after the
court
learned that the plaintiff wished to discontinue the action. Any delay,
frustration, or
Index No.: 601902-15
Page 3
expense incurred by SAA in the preparation of its contemplated defense
does not constitute prejudice warranting denial of the motion (Hurrell-Harring v
State of New York, 112 AD3d 1213, 1215). Moreover, the record does not reflect
that the proposed discontinuance is based on any untoward motive or that it is being
sought to gain an unfair litigation advantage (Id.). Rather, the record reflects that
the plaintiff wishes to discontinue the action due to changed circumstances, i.e., she is no
longer seeking employment that would require her to work at any of the four hospitals
named in the restrictive covenant.
Generally, courts should not pass on academic, hypothetical, moot, or otherwise
abstract questions (New York City Transit Auth. v Transport Workers Union of
America, 15 Misc 3d 1129[A] at *2, citing Matter of Hearst Corp. v
Clyne, 50 NY2d 707, 713-714). A matter will be considered moot unless the rights
of the parties will be directly affected by the court's determination and the interest of the
parties is an immediate consequence of the judgement (Id.). The plaintiff is no
longer pursuing employment that could result in a violation of the restrictive covenant,
and a decision by the court in this matter would not determine an actual controversy
between the parties (see, Saratoga County Chamber of Commerce v
Pataki, 100 NY2d 801, 811). Contrary to SAA's contentions, the exception to the
mootness doctrine found in Matter of Hearst Corp. v Clyne (supra), does
not apply.
In Matter of Hearst Corp., the Court of Appeals held that a moot
case may nonetheless be considered on the merits when it is demonstrated that there is:
(1) a likelihood of repetition, either between the parties or among other members of the
public, (2) a phenomenon typically evading review, and (3) a showing of significant or
important questions not previously passed on, i.e., substantial and novel issues (50 NY2d
at 714-715). SAA contends that this case presents a novel issue (i.e., whether restrictive
covenants should be enforced in the field of anesthesiology) that is likely to be repeated
either by the plaintiff, who may seek other [*3]employment during the restrictive convenant's remaining
term, or by others. The court agrees with SAA that the issues raised herein are likely to
be repeated, but finds that they are neither novel nor typically evading review.
The record reflects that, in addition to the plaintiff, two other
physician-employees who are bound by restrictive covenants have left SAA's employ. In
Suffolk Anesthesiology Assocs., P.C. v Verdone (Sup Ct, Suffolk County, Sept.
28, 2009, Gazillo, J., Index No. 37932/08, affd 74 AD3d 953), SAA sought to
enforce the restrictive covenant against one of them, the defendant Matthew Verdone.
SAA moved for a preliminary injunction, and both sides moved for partial summary
judgment. This court (Gazillo, J.) denied the motion and cross-motion for partial
summary judgment, but granted the preliminary injunction and enjoined Dr. Verdone
from practicing anesthesiology within 20 miles of St. Catherine's. The court found that
SAA had shown a likelihood of success on the merits, noting that covenants restricting
professionals, and physicians in particular, from competing with their former employers
are common and generally enforceable as long as they are reasonable as to time and area,
necessary
to protect legitimate interests, not harmful to the public, and not unduly
burdensome (Id. at 5).
Index No.: 601902-15
Page 4
The Appellate Division affirmed, finding that SAA had met its prima facie
burden of establishing, inter alia, that the restraints sought were reasonably limited, that
they were neither harmful to the public nor unduly burdensome, and that they served an
acceptable purpose. Thus, both this court and the Appellate Division have passed on the
question of whether restrictive covenants may be enforced against anesthesiologists, and
both courts have answered that question in the affirmative. Accordingly, this case does
not present a novel or important question not previously passed on and typically evading
review.
Contrary to SAA's contentions, the action is moot, and the discontinuance
should be without prejudice. In the absence of a violation of the restrictive covenant by
the plaintiff, it appears that SAA is using this litigation to obtain a judicial determination
that may be used against other physician-employees who are contemplating leaving its
employ. The plaintiff cannot be forced to litigate a claim that is, at this point, academic
so that SAA may obtain a determination on the enforceability of its restrictive covenant.
Such a determination would have no direct impact on the plaintiff and would only serve
to further SAA's use of the restrictive
covenant as a sword rather than as a shield. If the plaintiff seeks other
employment that implicates the restrictive covenant before the expiration of its term,
either party may commence a new action. The discontinuance of this action with
prejudice would allow SAA to commence a new action to enforce the restrictive
covenant against the plaintiff, but prohibit the plaintiff from challenging the covenant
except in defense of an action brought by SAA. The court finds that such a result would
give SAA an unfair litigation advantage.
Turning to the purported counterclaim, the court finds that there is no
counterclaim. The purported counterclaim is not denominated as such and is merely the
converse [*4]of the relief sought by plaintiff's first cause
of action. While the first cause of action seeks a judgment declaring that the restrictive
covenant is unenforceable, the purported counterclaim seeks a judgment declaring that
the restrictive covenant is enforceable. The purported counterclaim is, therefore,
harmless surplusage, serving the function of a denial or, at most, a defense (Iovine v
Caldwell, 256 AD2d 974). Moreover, a declaratory judgment action requires an
actual controversy between genuine disputants with a stake in the outcome and may not
be used as a vehicle for an advisory opinion (Watson v Aetna Cas. & Sur.
Co., 246 ADd2d 57, 62). As previously discussed, there is no longer an actual
controversy between the parties, and any determination by the court on the enforceability
of the restrictive covenant would be an advisory opinion.
In view of the foregoing, the motion to discontinue the action without
prejudice is granted. SAA's motion, inter alia, for summary judgment dismissing the
complaint is denied as academic, and the plaintiff's motion for a preliminary injunction
has been withdrawn.
Dated:June 8, 2015
J.S.C.