Colantonio v. Mercy Med. Ctr.

• Citation: 24 N.Y.S.3d 653,135 A.D.3d 686
• Parties: Anthony COLANTONIO, respondent, v. MERCY MEDICAL CENTER, et al., appellants.
• Decision Date: 13 January 2016
• Court: New York Supreme Court Appellate Division

135 A.D.3d 686

24 N.Y.S.3d 653

Anthony COLANTONIO, respondent,

v.MERCY MEDICAL CENTER, et al., appellants.

Supreme Court, Appellate Division, Second Department, New York.

Jan. 13, 2016.

Ward Greenberg Heller & Reidy LLP, Rochester, N.Y. (Thomas S. D'Antonio and Joshua M. Agins of counsel), for appellants.

Agoglia, Holland & Agoglia, P.C., Jericho, N.Y. (E. Kevin Agoglia of counsel), for respondent.

WILLIAM F. MASTRO, J.P., THOMAS A. DICKERSON, SHERI S. ROMAN, and JOSEPH J. MALTESE, JJ.

In an action to recover damages for defamation, the defendants appeal from an order of the Supreme Court, Nassau County (Galasso, J.), dated December 13, 2013, which denied their motion for summary judgment dismissing the fourth, thirteenth, fifteenth, sixteenth, and eighteenth through twenty-second causes of action, and stated portions of the second, third, fifth, eighth, eleventh, twelfth, and fourteenth causes of action of the amended complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the fourth, thirteenth, fifteenth, sixteenth, and eighteenth through twenty-second causes of action, and stated portions of the second, third, fifth, eighth, eleventh, twelfth, and fourteenth causes of action of the amended complaint is granted.

The plaintiff is a physician who formerly had privileges at the defendant hospital, Mercy Medical Center (hereinafter Mercy). From approximately July 2007 to November 2007, Mercy received numerous complaints from physicians and other staff members about the plaintiff's behavior. Among other things, there were complaints that the plaintiff raised his voice in the intensive care unit (hereinafter the ICU), made rude and inappropriate remarks in front of patients, confused and intimidated the nurses, made the nurses feel uncomfortable, and made inappropriate entries in patient charts.

The complaints led to a meeting between Mercy's Interim Medical Director, the defendant Joel Yohai, Mercy's Chair of Surgery, the defendant Gregory Zito, and the plaintiff. After explaining their concerns and expectations, Yohai and Zito told the plaintiff that his behavioral problems must come to an end. Thereafter, Yohai and Zito determined that, despite prior warnings and opportunities to improve his problematic behavior, the plaintiff failed to do so. On October 25, 2007, Yohai and Zito informed the plaintiff that they were planning to summarily suspend him pending corrective action, as authorized by Mercy's bylaws. At the plaintiff's request, he was allowed to take a voluntary leave of absence in lieu of suspension. As pertinent to this appeal, Mercy's bylaws set forth a process to adjudicate any requested corrective action that could result in a revocation or suspension of privileges, or revocation or suspension of medical staff membership. On November 13, 2007, Yohai and Zito requested that Mercy's Medical Staff Executive Committee (hereinafter the EC) take corrective action to address the plaintiff's disruptive and problematic behavior. Pursuant to the bylaws, the EC scheduled an initial meeting of Mercy's Credentials Committee to review the matter, and notified the plaintiff about the meeting.

On November 27 and 28, 2007, the Credentials Committee convened to review the plaintiff's conduct and recommend the appropriate corrective action, if any. Yohai appeared as a witness and referenced complaints contained in the plaintiff's quality assurance file, including complaints of inappropriate entries in medical charts, failure to follow protocols, and repeated reports of interpersonal problems with staff and colleagues. Yohai told the Credentials Committee that the plaintiff repeatedly failed to heed warnings and counseling sessions about his problematic behavior. The plaintiff and other witnesses also appeared at the Credentials Committee meeting. Some of the plaintiff's proffered witnesses declined to appear, and those who came to speak on his behalf did not have a chance to do so because the plaintiff used up his allotted time. The Credentials Committee unanimously recommended that the plaintiff's clinical privileges and membership on the medical staff at Mercy be suspended, and this recommendation was memorialized in a letter dated December 3, 2007. On December 11, 2007, the EC exercised its authority under Mercy's bylaws, and modified the recommendation of the Credentials Committee. By a vote of 18 to 3, the EC recommended termination of the plaintiff's clinical privileges and medical staff membership.

Pursuant to Mercy's bylaws, the plaintiff had 30 days to request a hearing before an ad hoc committee comprised of members of the attending medical staff, in order to review the EC's recommendation to terminate his privileges at Mercy. However, it does not appear that the plaintiff made such a request.

Shortly after the EC made its recommendation to terminate the plaintiff's clinical privileges and medical staff membership, the plaintiff began making public and private complaints about the quality of care at Mercy. Among other things, he made complaints about Mercy in print and broadcast media, in correspondence to the Joint Commission on Healthcare Accreditation, in "broadcast faxes" to Mercy medical staff members, and in correspondence to Pope Benedict XVI.

On February 6, 2008, the plaintiff commenced the instant action, asserting 18 causes of action to recover damages for defamation based on allegations of false statements made by certain personnel at Mercy prior to and during the Credentials Committee meeting. Thereafter, Mercy and various staff members held a press conference, disseminated a memorandum, and published a newspaper advertisement, which the plaintiff alleged further defamed him. This led the plaintiff to file an amended complaint adding five defendants and four causes of action.

Before any discovery occurred, the defendants moved, inter alia, for summary judgment dismissing the amended complaint. In an order entered December 8, 2008, the Supreme Court denied the motion. In a decision and order dated May 18, 2010, this Court modified the order entered December 8, 2008, so as to grant those branches of the defendants' motion which were for summary judgment dismissing the first, sixth, seventh, ninth, tenth, and seventeenth causes of action, as well as various portions of the second, third, fifth, eighth, eleventh, twelfth, and fourteenth causes of action, on the ground that they were based on statements which constituted nonactionable opinion (see Colantonio v. Mercy Med. Ctr., 73 A.D.3d 966, 901 N.Y.S.2d 370 ).

Subsequently, the plaintiff was deposed. In November 2012, he filed a note of issue which included a notation that "EBT's are currently continuing. Per order disclosure may continue post Note of Issue." After the note of issue was filed, the plaintiff was deposed again, and Yohai and a nonparty physician were also deposed.

Thereafter, the defendants moved for summary judgment dismissing the fourth, thirteenth, fifteenth, sixteenth, and eighteenth through twenty-second causes of action, and the portions of the second, third, fifth, eighth, eleventh, twelfth, and fourteenth causes of action that remained after this Court's decision and order dated May 18, 2010. This motion was supported by the affidavit of Yohai and more than 30 exhibits, including excerpts of the plaintiff's deposition testimony and excerpts of the deposition testimony of a nonparty physician. The plaintiff opposed the motion, relying upon numerous exhibits, including excerpts of Yohai's deposition testimony.

In the order appealed from, the Supreme Court denied the defendants' motion, concluding that, although the defendants demonstrated their prima facie entitlement to judgment as a matter of law under "theories of qualified immunity or privilege," the plaintiff "raised genuine and material questions of fact and credibility as to whether the alleged defamatory statements ... were made with malice and/or actual malice ... and/or were knowingly false." The court also determined, among other things, that the defendants' assertion that they were entitled to judgment as a matter of law on the basis of absolute privilege was unavailing. The defendants appeal.

At the outset, we find no merit to the defendants' contention that certain statements at issue lacked defamatory import (see generally Thomas H. v. Paul B., 18 N.Y.3d 580, 942 N.Y.S.2d 437, 965 N.E.2d 939 ; Geraci v. Probst, 15 N.Y.3d 336, 912 N.Y.S.2d 484, 938 N.E.2d 917 ; Stuart v. Porcello, 193 A.D.2d 311, 313, 603 N.Y.S.2d 597 ). Similarly, the defendants' contention that certain statements at issue constitute nonactionable opinion has already been determined by this Court on the prior appeal (see Colantonio v. Mercy Med. Ctr., 73 A.D.3d at 968, 901 N.Y.S.2d 370 ).

To the extent that the plaintiff argues that the subject motion was an improper successive summary judgment motion, his argument is without merit. The subject motion did not violate the general proscription against successive summary judgment motions because it was based on deposition testimony which was not elicited until after the issuance of the prior order denying the defendants' first motion for summary judgment (see Alaimo v. Mongelli, 93 A.D.3d 742, 743, 940 N.Y.S.2d 669 ; Auffermann v. Distl, 56 A.D.3d 502, 867 N.Y.S.2d 527 ; Staib v. City of New York, 289 A.D.2d 560, 561, 735 N.Y.S.2d 799 ; cf. Vinar v. Litman, 110 A.D.3d 867, 868, 972 N.Y.S.2d 704 ).

The Supreme Court correctly determined that the defendants were not entitled to judgment as a matter of law dismissing the portions of the second, third, fifth, eighth, eleventh, twelfth, and fourteenth causes of action that remained after this Court's decision and order dated May 18, 2010, on the basis of absolute privilege. These causes of action are predicated upon statements made during the Credentials Committee meeting. "Public policy mandates that certain communications, although...