Douyon v. N.Y. Med. Health Care, P.C., No. CV 10–3983(AKT).

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtA. KATHLEEN TOMLINSON
Citation894 F.Supp.2d 245
Docket NumberNo. CV 10–3983(AKT).
Decision Date28 September 2012
PartiesGabrielle DOUYON, Plaintiff, v. NY MEDICAL HEALTH CARE, P.C., Seymour Schneider, aka Sy Schneider, Kourosh Golyan, aka David Golyan, Nathan Khaimov, Faraidoon Daniel Golyan, M.D., Defendants.

894 F.Supp.2d 245

Gabrielle DOUYON, Plaintiff,
v.
NY MEDICAL HEALTH CARE, P.C., Seymour Schneider, aka Sy Schneider, Kourosh Golyan, aka David Golyan, Nathan Khaimov, Faraidoon Daniel Golyan, M.D., Defendants.

No. CV 10–3983(AKT).

United States District Court,
E.D. New York.

Sept. 28, 2012.


[894 F.Supp.2d 250]


Peter Thomas Lane, Schlanger & Schlanger LLP, White Plains, NY, Daniel Adam Schlanger, Schlanger & Schlanger, LLP, Pleasantville, NY, for Plaintiff.

Revaz Chachanashvili, Revaz Chachanashvili & Associates, Forest Hills, NY, for Defendants.


MEMORANDUM AND ORDER

A. KATHLEEN TOMLINSON, United States Magistrate Judge:

Plaintiff Gabrielle Douyon (“Plaintiff” or “Douyon”) has brought this lawsuit on the basis of alleged unfair, abusive and deceptive practices utilized by the Defendants in their attempt to collect an alleged medical debt from the Plaintiff. Am. Compl. ¶ 2. As a First Cause of Action, Plaintiff asserts claims for violations of various provisions of the Fair Debt Collections Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq. against Defendant Seymour (a.k.a. Sy) Schneider (“Schneider”) only. The following claims are asserted against all Defendants: Deceptive Acts and Practices Unlawful in Violation of New York General Business Law (“NY GBL”) § 349 (Second Cause of Action), Intentional Infliction of Emotional Distress (Third Cause of Action), and Slander (Fourth Cause of Action). Plaintiff also asserts claims for Negligent Hiring, Retention, Training, and Supervision (Fifth Cause of Action) and Negligence (Sixth Cause of Action) against Defendants N.Y. Medical Health Care, P.C. (“NY Medical”) and Faraidoon Daniel Golyan, M.D. (“Dr. Golyan”). Both parties have moved for summary judgment. Plaintiff seeks partial summary judgment for certain violations of the FDCPA by Defendant Schneider and for certain violations of N.Y. GBL § 349 by all Defendants. Defendants seek summary judgment on Plaintiff's N.Y. GBL § 349 claim as well as her intentional infliction of emotional distress and negligence claims. Defendants also seek summary judgment on the issue of whether N.Y. Medical can be held vicariously liable for Schneider's acts.

The parties submitted the following documents in connection with Plaintiff's motion for summary judgment: Plaintiff's Memorandum of Law [DE 72–19] (“Pl's Mem.”); Plaintiff's Rule 56.1 Statement [DE 72–1] (“Pl's. Stmt.”); Defendants' Memorandum of Law in Opposition [DE 73] (“Defs.' Opp. Mem.”) with Exhibits [DE 75]; Defendants' Rule 56.1 Counterstatement [DE 73–1] (“Defs.' Counterstmt.”); Plaintiff's Reply Memorandum of Law [DE 74] (“Pl's Reply Mem.”); and the Declaration of Daniel A. Schlanger, Esq. [DE 72–2] (“Schlanger Decl.”) with Exhibits. In connection with Defendants' motion, the Court reviewed and considered the following: Defendants' Memorandum of Law [DE 68–1] (“Defs.' Mem.”), Defendants' Rule 56.1 Statement [DE 68–2] (“Defs.' Stmt.”) with Exhibits; Plaintiff's Memorandum of Law in Opposition [DE 70] (“Pl's. Opp. Mem.”); Plaintiff's Rule 56.1 Counterstatement and Statement of Additional Facts [DE 69] (“Pl's. Counterstmt.”); 1 the Declaration of Daniel A.

[894 F.Supp.2d 251]

Schlanger, Esq. [DE 69–1] (“Schlanger Opp. Decl.”) with Exhibits; Defendants' Counterstatement in Response to Plaintiff's Statement of Additional Facts [DE 71–1] (“Defs.' Reply Counterstmt.”); Defendants' Reply Memorandum of Law [DE 71] (“Defs.' Reply Mem.”); and the Affidavit of Kourosh Golyan [DE 71–2]. Having considered the foregoing submissions, as well as the applicable law, the Court GRANTS in part and DENIES in part Plaintiff's motion for summary judgment and GRANTS in part and DENIES in part Defendants' motion for summary judgment for the reasons that follow.

I. Background

The following undisputed facts are drawn from the parties' Rule 56.1 Statements and the Stipulated Facts set forth in the Proposed Joint Pre–Trial Statement signed by both parties [DE 60] (“Pre–Trial Stmt.”). In considering a motion for summary judgment, the Court construes the facts in the light most favorable to the non-moving party. See Capobianco v. City of New York, 422 F.3d 47, 50 n. 1 (2d Cir.2005).

A. The Parties

Plaintiff Gabrielle Douyon is a resident of Elmont New York. See Defs.' Counterstmt. ¶ 1. Douyon is a “consumer” as that term is defined under the FDCPA. Id. ¶ 2.

Defendant N.Y. Medical is a cardiology practice with principal places of business in Great Neck, New York and Forest Hills, New York. Id. ¶ 3. Defendant Kourosh Golyan, a.k.a. David Golyan (“David Golyan”), is the office manager of N.Y. Medical and oversees its collection activities. Id. ¶ 4. Defendant Faraidoon Daniel Golyan, M.D. (“Dr. Golyan”) is a licensed medical doctor and co-owner of N.Y. Medical. Pre–Trial Stmt. ¶ 3.

Defendant Schneider has worked as a freelance debt collector since 2009. Defs.' Counterstmt. ¶ 15. NY Medical retained Schneider's services in connection with its attempt to collect a debt from Plaintiff. Id. ¶ 13.

B. Douyon's Surgery and the Alleged Debt

On or about September 24, 2009, the Plaintiff was admitted to North Shore Hospital in Westbury, New York for emergency heart surgery. Am. Compl. ¶ 24. The Plaintiff's cardiologist did not have admitting privileges at North Shore Hospital at that time. Id. ¶ 25. As a result, Dr. Golyan performed emergency heart surgery on Plaintiff. See Defs.' Counterstmt. ¶ 5; Pre–Trial Stmt. ¶ 4. Dr. Golyan also saw Plaintiff in the hospital and in the offices of N.Y. Medical after her surgery. Defs.' Counterstmt. ¶ 5. Plaintiff continued to receive treatment from Dr. Golyan for approximately nine months, up until June 2010. Am. Compl. ¶ 27.

NY Medical negotiated with Plaintiff's employer and the employer's third-party benefits administrators to reduce Plaintiff's N.Y. Medical bill from $76,587 to $40,000. Pre–Trial Stmt. ¶ 5. Plaintiff's insurer, Empire Blue Cross/Blue Shield (“Empire”), paid $34,000 of that bill to N.Y. Medical directly. Defs.' Counterstmt. ¶ 7. Empire also sent Plaintiff a check for approximately $5,000 in early

[894 F.Supp.2d 252]

2010. Pre–Trial Stmt. ¶ 6.2 Plaintiff did not pay over to N.Y. Medical the $5,215 after receiving the checks from Empire, but rather claims that she cashed the checks and then sent the money to her relatives in Haiti. See Defs.' Stmt. ¶ 9; Pl's. Counterstmt. ¶ 9. This alleged payment shortfall is denominated a “debt” and was previously the subject of a breach of contract counterclaim asserted by N.Y. Medical against Plaintiff in this case. See DE 56. However, on November 25, 2011, N.Y. Medical filed a Notice of Acceptance of Offer of Judgment in the amount of $5,378 with respect to that claim, see DE 65, and Judgment was entered, see DE 66.

C. Defendants' Debt Collection Attempts

NY Medical retained the services of Defendant Seymour Schneider to collect Plaintiff's debt. Defs.' Counterstmt. ¶ 13. NY Medical employed Schneider on multiple occasions to collect debts owed by its patients and compensated him by paying him a percentage of the funds he collected from debtors. Pl's. Counterstmt. ¶ 6; Defs.' Counterstmt. ¶ 17.

At some point in the summer of 2010, Schneider visited Douyon's place of work and discussed with her the alleged debt she owed N.Y. Medical. Defs.' Counterstmt. ¶¶ 21–22. During that visit, Schneider discussed Plaintiff's alleged debt in the presence of Douyon's coworker, Donna Tucker. Id. ¶ 22. When Schneider departed Douyon's workplace after his initial visit, he left his business card. Id. ¶ 23. The business card depicts an American flag and bears the title “Financial Crimes Investigator” under Schneider's name. Id.

In connection with his debt collection efforts, Schneider left Plaintiff a message on her voicemail. See id. ¶ 25. The parties offer slightly different transcriptions of the message in their Rule 56.1 Statements. See id. However, in the “Stipulated Facts” section of the Joint Pre–Trial Statement, the parties agreed that Schneider left the following message:

(Undecipherable) appreciate necessarily (Undecipherable) by coming out to your house with the uh doctors. I'm gonna be at your place tomorrow, at your employment and I'm gonna see about coming with the sheriff and have you arrested. You want to play games and I'm gonna play the same game and I'm gonna be the winner.

Joint Pre–Trial Stmt. ¶ 18. Schneider never actually contacted the sheriff. Defs.' Counterstmt. ¶ 26.


In addition to Schneider's efforts, David Golyan sent Plaintiff letters on January 19, 2010 and March 15, 2010 which contained the following language:

* * Please Note: if we do not receive the check(s) by [date]. We have no other choice to place your account in our legal department which will result in a 10% percent interest every 30 days on the full amount of the balance due with

[894 F.Supp.2d 253]

Interest Accumulated added to the principal amount due * *

See id. ¶ 8; Schlanger Aff., Ex. H. Plaintiff testified that she did not receive these letters. Defs.' Stmt. ¶ 11; Pl's. Counterstmt. ¶ 12.


The Amended Complaint alleges other debt collection activity by Defendants. However, only the undisputed facts are set forth in this section. To the extent that the other activity is relevant to this motion, that activity is discussed below.

II. Standard of Review

Fed.R.Civ.P. 56(a) dictates that a “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The moving party bears the initial burden of establishing the absence of any genuine issue of material fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir.2008). To determine whether the moving party has satisfied this burden, the Court is required to view the evidence and all factual inferences arising from that evidence in the light most favorable to the non-moving party. Doro v. Sheet Metal Workers'...

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22 practice notes
  • Goldemberg v. Johnson & Johnson Consumer Cos., No. 13–cv–3073 NSR.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 27, 2014
    ...did not see the website and Facebook page beforehand, he could not have been injured by them. Douyon v. N.Y. Med. Health Care, P.C., 894 F.Supp.2d 245, 263 (E.D.N.Y.2012) (citing Gale, 9 A.D.3d at 447, 781 N.Y.S.2d 45 ). Here, Plaintiff describes in particular the allegedly misleading adver......
  • Goldemberg v. Johnson & Johnson Consumer Cos., No. 13–cv–3073 (NSR).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 27, 2014
    ...did not see the website and Facebook page beforehand, he could not have been injured by them. Douyon v. N.Y. Med. Health Care, P.C., 894 F.Supp.2d 245, 263 (E.D.N.Y.2012) (citing Gale, 9 A.D.3d at 447, 781 N.Y.S.2d 45). Here, Plaintiff describes in particular the allegedly misleading advert......
  • St. Francis Holdings, LLC v. MMP Capital, Inc., 20-CV-4636 (MKB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 31, 2022
    ...potential vicarious liability of principal under a theory of actual and apparent authority); Douyon v. N.Y. Med. Health Care, P.C., 894 F.Supp.2d 245, 272 (E.D.N.Y. 2012) (“Where a principal does not control an agent, the principal may still be vicariously liable for the agent's actions whe......
  • Castro v. Bank of N.Y. Mellon, for the Certificate Holders of Cwalt Inc., 17-CV-4375(JS)(GRB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 30, 2018
    ...and a series of statements outlining the dispute procedures. 15 U.S.C. § 1692g(a); see also Douyon v. N.Y. Med. Health Care, P.C., 894 F. Supp. 2d 245, 255 (E.D.N.Y. 2012), amended on reconsideration, No. 10-CV-3983, 2013 WL 5423800 (E.D.N.Y. Sept. 25, 2013). The Court finds that Plaintiff'......
  • Request a trial to view additional results
22 cases
  • Goldemberg v. Johnson & Johnson Consumer Cos., No. 13–cv–3073 NSR.
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 27, 2014
    ...did not see the website and Facebook page beforehand, he could not have been injured by them. Douyon v. N.Y. Med. Health Care, P.C., 894 F.Supp.2d 245, 263 (E.D.N.Y.2012) (citing Gale, 9 A.D.3d at 447, 781 N.Y.S.2d 45 ). Here, Plaintiff describes in particular the allegedly misleading adver......
  • Goldemberg v. Johnson & Johnson Consumer Cos., No. 13–cv–3073 (NSR).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • March 27, 2014
    ...did not see the website and Facebook page beforehand, he could not have been injured by them. Douyon v. N.Y. Med. Health Care, P.C., 894 F.Supp.2d 245, 263 (E.D.N.Y.2012) (citing Gale, 9 A.D.3d at 447, 781 N.Y.S.2d 45). Here, Plaintiff describes in particular the allegedly misleading advert......
  • St. Francis Holdings, LLC v. MMP Capital, Inc., 20-CV-4636 (MKB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • March 31, 2022
    ...potential vicarious liability of principal under a theory of actual and apparent authority); Douyon v. N.Y. Med. Health Care, P.C., 894 F.Supp.2d 245, 272 (E.D.N.Y. 2012) (“Where a principal does not control an agent, the principal may still be vicariously liable for the agent's actions whe......
  • Castro v. Bank of N.Y. Mellon, for the Certificate Holders of Cwalt Inc., 17-CV-4375(JS)(GRB)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • August 30, 2018
    ...and a series of statements outlining the dispute procedures. 15 U.S.C. § 1692g(a); see also Douyon v. N.Y. Med. Health Care, P.C., 894 F. Supp. 2d 245, 255 (E.D.N.Y. 2012), amended on reconsideration, No. 10-CV-3983, 2013 WL 5423800 (E.D.N.Y. Sept. 25, 2013). The Court finds that Plaintiff'......
  • Request a trial to view additional results

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