Fersel v. Paramount Med. Servs., P.C.

• Docket Number: 18-CV-2448 (AMD) (ARL)
• Decision Date: 28 February 2022
• Citation: 588 F.Supp.3d 304
• Parties: Jordan FERSEL, M.D., Plaintiff, v. PARAMOUNT MEDICAL SERVICES, P.C., Defendant.
• Court: U.S. District Court — Eastern District of New York

588 F.Supp.3d 304

Jordan FERSEL, M.D., Plaintiff,

v.PARAMOUNT MEDICAL SERVICES, P.C., Defendant.

18-CV-2448 (AMD) (ARL)

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

Signed February 28, 2022

Bertrand C. Sellier, C. Zachary Rosenberg, Rottenberg Lipman Rich P.C., New York, NY, for Plaintiff.

Steven J. Harfenist, Harfenist Kraut & Perlstein, LLP, Lake Success, NY, for Defendant.

MEMORANDUM DECISION AND ORDER

ANN M. DONNELLY, United States District Judge:

The plaintiff Dr. Jordan Fersel brings this action against the defendant Paramount Medical Services, P.C., a healthcare corporation in New York, asserting claims for breach of contract, unjust enrichment, quantum meruit, and violations of New York Labor Law and health insurance law. (ECF No. 15.) The defendant asserts counterclaims for breach of contract, tortious interference of contract and quantum meruit. (ECF No. 16.) Before the Court are the parties’ cross-motions for partial summary judgment. (ECF Nos. 44, 51.) For the reasons explained below, I grant both parties’ motions in part, and deny them in part.

BACKGROUND

The plaintiff is a pain management specialist, who is licensed to practice medicine in New York, and is a citizen and resident of New Jersey. (ECF No. 44-1 ("Pl. 56.1") ¶ 1; ECF No. 15 ¶ 1.) The defendant is a professional corporation "engaged in the practice of medicine in the New York Metropolitan area at multiple practice locations" with its principal place of business in New York. (Pl. 56.1 ¶ 4; ECF No. 15 ¶ 2.) It specializes in pain management treatment. (ECF No. 57 ("Def. 56.1") ¶ 2.)

On December 12, 2016, the parties entered into an Agreement of Engagement (the "Agreement") by which the defendant "engage[d] [the plaintiff] to provide professional medical services for [Paramount's] patients." (Pl. 56.1 ¶ 5 (alterations in original); ECF No. 45-1 at 2.) Paramount's president Dr. Jonathan Landow signed the Agreement on the defendant's behalf. (Pl. 56.1 ¶ 4.) Pursuant to the Agreement, the plaintiff was obligated to "render such professional services as are assigned to [him], to or on behalf of [Paramount's] patients. Such services shall be limited to medical and related services in one or more of [Paramount's] facilities at the option of [Paramount], from time to time." (Pl. 56.1 ¶ 5; ECF No. 45-1 at 3.) The Agreement specified that "[t]hese professional services shall include, but are not necessarily limited to the [plaintiff] maintaining records on a current basis, timely maintaining patient charts and records, and responding to all reasonable record keeping requests." (ECF No. 45-1 at 3.)

The Agreement provided for the conditions, rate and timing of the plaintiff's compensation. Article IV of the Agreement set the conditions and timing of compensation:

Compensation. Physician [the plaintiff] shall be paid on a monthly basis by the Company [the defendant] for finalized work (including completion of all underlying documentation), authorized by the Company, after Company receives payment for these services rendered by Physician (physician revenue). Company shall pay Physician according to Schedule "A".

Physician compensation is due on or before the tenth day of the month following the month in which physician revenue is received by company. For example, physician revenue received during the month of January will be due on or before February 10th.

(Id. at 3-4.) Article IV referenced Schedule A to the Agreement, which specified the plaintiff's rate of compensation. Schedule A reads:

Physician shall be paid on a monthly basis by the Company for finalized work (including completion of all underlying documentation), authorized by the Company, after Company receives payment for these services rendered by Physician (referred to as "physician revenue" ).

As full physician compensation for physician services performed under this agreement, Company shall pay Physician 40% (FORTY PERCENT) of physician revenue which represents all monies company receives for services rendered by Physician.

(Id. at 13 (emphasis in original).)

The Agreement provided that the defendant had the right to collect revenue for the plaintiff's services from both patients and insurers. Article VI of the Agreements reads: "[Paramount] shall have the exclusive right to bill and collect from patients, or third party payors, all amounts due for services rendered to the Company's patients by Physician." (Id. at 4.) The Agreement also required the plaintiff "to cooperate with [the defendant], without additional compensation, to effectuate such billing and collection, and completing and/or executing necessary forms and documents." (Id. )

Article X of the Agreement established restrictive covenants that would apply to the plaintiff during the agreement and for some time following its termination. The parties agreed that the plaintiff's "covenant not to compete is necessary to insure [sic] continuation of the Company and irreparable harm and damage will be done to the Company in the event that Physician competes with the Company." (Id. at 8.) In pertinent part, the restrictive covenant contained a non-compete clause in Article 10.01 and a non-solicitation clause in Article 10.04. (Id. at 8-9.) The non-compete clause reads as follows:

Physician, his agents, servants, employees, or representatives, covenant that except as specified by this Agreement, during the term of this Agreement and any extension or renewal hereof and for a period of two (2) years thereafter, and at each and every facility as defined herein of the Company, he or she will not:

(i) divert or attempt to divert from the Company, any business whatsoever, directly or indirectly, whether through the Company's referral sources, both current and those within a period of two years prior to the termination or expiration of this Agreement, or by any other means.

(ii) divert or attempt to divert, solicit, invite, induce or importune, either directly or indirectly, any patient of the Company into seeking treatment at any location other than an office of the Company.

(iii) influence or attempt to influence any patient of the Company not to do business with the Company.

(iv) make or permit the making of any public announcement or statement of any kind that he or she is or was formerly connected with the Company, which has as a purpose, directly or indirectly, to violate the provision of this Paragraph 10.01.

(v) induce, invite, solicit, or importune any employee of the Company to leave the employ of the Company or to become interested or in any way connected with a business similar to that of the Company.

(vi) seek or accept an employment, independent contractor or other arrangement of any kind whatsoever wherein the work to be performed pursuant to any such arrangement may be located at any one or more facilities as defined herein.

(vii) upon termination or expiration of this Agreement, treat or consult with any patient of the Company except in the case of a medical emergency or with prior written consent from the Company.

(Id. at 8-9.) For the purposes of Article X, the Agreement defined the defendant's "affiliates" as "corporations with the same shareholders as [the defendant], which render medical services materially similar to those of the company," and defined "facilities" as "those additional locations where Company or said affiliates provides or has, within a period of two years prior to the termination or expiration of this Agreement, provided medical services." (Id. )

The non-solicitation clause provides in part:

Physician shall not directly or indirectly, at any time during the term hereof and within a period of three years following the termination of this Agreement (irrespective of the reason for termination), directly or indirectly solicit or permit any employees or independent contractors of Company to provide any services at Company locations or affiliated premises without prior written consent of Company, nor shall they access, contact solicit and/or conduct any transaction with such said Company clients or business sources directly or indirectly, without the expressed and specific prior written permission of Company.

(Id. at 9.)

The Agreement was to run from December 12, 2016 (the "Commencement Date") for two years, "subject, however to earlier termination as ... provided" in the Agreement.¹ Article VIII set out the various ways the parties could terminate the Agreement with or without cause. To terminate the Agreement without cause, either party had to give 60 days’ prior written notice; "however, the parties [could] terminate this Agreement immediately upon their mutual written consent." (Id. at 5.)

Nearly all payments that the defendant received for the plaintiff's work came from insurance companies. (Pl. 56.1 ¶ 15.) Insurance companies sometimes raised questions about certain invoices. (Id. ¶ 17.) If those questions could not be resolved, Paramount retained counsel to submit the claims to arbitration. (Id. ¶ 18.) Because of delays relating to, among other things, arbitration, the defendant regularly received payments from insurers some time after the plaintiff performed the corresponding services.²

During the course of the Agreement, the plaintiff saw about 75 to 80 patients a week. Eventually, Dr. Landow wanted the plaintiff to treat patients with platelet rich plasma ("PRP"). In June of 2017, the plaintiff started treating patients with PRP.³ (Pl. 56.1 ¶ 23.) The plaintiff treated about two to three patients a week with PRP.⁴ (Id. ¶ 27.)

During December of 2017 and January of 2018, Dr. Landow and the plaintiff discussed amending the Agreement and modifying the compensation schedule, but were unable to reach an agreement. (Id. ¶ 28.) On January 21, 2018, Dr. Landow sent the plaintiff a proposal to revise the compensation formula in the Agreement, which the plaintiff rejected the next day. (Id. ¶¶ 29-30.) In a January 23, 2018 email, Dr. Landow wrote the plaintiff, "If we are unable to reach an accord, pursuant to the [A]greement[,] we...