Comprehensive Community Development Corp. v. Lehach

• Decision Date: 16 January 1996
• Citation: 636 N.Y.S.2d 755,223 A.D.2d 399
• Parties: COMPREHENSIVE COMMUNITY DEVELOPMENT CORPORATION, Plaintiff-Respondent, v. Joan G. LEHACH, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 755

636 N.Y.S.2d 755

223 A.D.2d 399

COMPREHENSIVE COMMUNITY DEVELOPMENT CORPORATION, Plaintiff-Respondent, v. Joan G. LEHACH, Defendant-Appellant.

Supreme Court, Appellate Division,

First Department.

Jan. 16, 1996.

A.R. Block, for plaintiff.

C.T. Peluso, for defendant.

Before SULLIVAN, J.P., and ROSENBERGER, WALLACH, ROSS and WILLIAMS, JJ.

MEMORANDUM DECISION

Order, Supreme Court, Bronx County (Bertram Katz, J.), entered September 28, 1994, which denied defendant's motion for summary judgment dismissing the complaint and upon her first counterclaim for breach of contract, unanimously affirmed, with costs.

Defendant was a staff physician specializing in the treatment of allergies with plaintiff community health center from May 1990 until May 1991, when her employment was terminated. Plaintiff alleges, inter alia, that defendant misappropriated various patient records from its office, thus wreaking havoc on its ability to provide continuous care to its patients in wanton disregard for their well-being, and then used those records to solicit its patients for her private practice.

The IAS court properly rejected defendant's contention that the cause of action for conversion, based on defendant's alleged misappropriation and unauthorized exclusive control of more than 500 of plaintiff's medical records to plaintiff's exclusion, must fail where the evidence, at this point, merely establishes that defendant retained copies of the documents (cf., Harper & Row, Publs. v. Nation Enters., 2d Cir., 723 F.2d 195, revd. on other grounds 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588). Retention of copies may be found to be conversion under the circumstances, especially if the originals were missing.

The second cause of action was properly sustained as it alleges breach of contract premised on actions alleged to have occurred during defendant's employment, not after her termination. The fourth cause of action is legally sufficient as it is therein alleged that defendant engaged in unfair competition with plaintiff by misappropriation and exploitation of confidential information in abuse of her relationship of trust with plaintiff and improper use of this information to solicit plaintiff's patients for her own behalf (Allan Dampf, P.C. v. Bloom, 127 A.D.2d 719, 720, 512 N.Y.S.2d 116, citing, inter alia, Leo Silfen, Inc. v. Cream, 29 N.Y.2d 387, 328 N.Y.S.2d 423, 278 N.E.2d 636). We also reject defendant's contention that the claim for tortious...