Meyer v. Zucker

• Decision Date: 19 April 2018
• Docket Number: 525163
• Citation: 160 A.D.3d 1243,75 N.Y.S.3d 325
• Parties: Jill MEYER, Appellant, v. Howard A. ZUCKER, as Commissioner of Health, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

160 A.D.3d 1243

75 N.Y.S.3d 325

Jill MEYER, Appellant,

v.Howard A. ZUCKER, as Commissioner of Health, et al., Respondents.

525163

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

Decided and Entered: April 19, 2018

Calendar Date: February 16, 2018

Wolin & Wolin, Jericho (Alan E. Wolin of counsel), for appellant.

Eric T. Schneiderman, Attorney General, Albany (Patrick A. Woods of counsel), for Howard A. Zucker and others, respondents.

Epstein Becker & Green, PC, New York City (Traycee Ellen Klein of counsel), for North Shore–Long Island Jewish Health System, respondent.

Before: McCarthy, J.P., Egan Jr., Devine, Clark and Rumsey, JJ.

MEMORANDUM AND ORDER

Clark, J.

Appeal from an order of the Supreme Court (O'Connor, J.), entered September 12, 2016 in Albany County, which, upon converting the CPLR article 78 proceeding to an action for injunctive relief, granted defendants' motions to dismiss the complaint.

In 2004, plaintiff, a psychiatrist licensed to practice in New York, was appointed to the active medical staff and obtained clinical privileges at North Shore University Hospital (hereinafter NSUH), a member of defendant North Shore–Long Island Jewish Health System (hereinafter NSLIJHS). In July 2008, plaintiff applied for appointment to Forest Hills Hospital's medical staff and for clinical privileges at Forest Hills Hospital, but she was advised that a recommendation would be made to the Credentialing Committee of Forest Hills Hospital's Medical Board to deny her application.¹ In September 2009, plaintiff was notified that the medical board had denied her application, and that decision was upheld upon administrative review. In August 2010, plaintiff's application for reappointment at NSUH was approved for the two-year cycle February 1, 2011 through January 31, 2013.² In that application, plaintiff did not disclose that she had been previously denied clinical privileges at Forest Hills Hospital. Thereafter, NSUH became aware of the omission in plaintiff's application and, as a result, requested corrective action to terminate her clinical privileges.

While the request for corrective action was pending, plaintiff's privileges at NSUH expired on January 31, 2013, and her application for reappointment for the February 1, 2013 to January 31, 2015 cycle was denied. Following a March 2014 administrative hearing, NSUH's Hearing Committee upheld the request for corrective action and termination of plaintiff's clinical privileges, as well as the decision denying her request for reappointment to the medical staff for the 2013–2015 cycle. These findings were upheld by the appellate review committee. Plaintiff then filed an improper practice complaint with defendant Public Health and Health Planning Council (hereinafter PHHPC),³ alleging that NSUH's request for corrective action and denial of her application for reappointment to the medical staff at NSUH were in violation of the Public Health Law. The PHHPC did not credit plaintiff's complaint, finding that the request for corrective action was consistent with Public Health Law § 2801–b.

Plaintiff subsequently commenced the underlying CPLR article 78 proceeding, claiming, among other things, that NSUH violated Public Health Law § 2801–b by seeking revocation of her privileges and by denying her reappointment application. In lieu of answering, PHHPC, defendant Commissioner of Health and defendant Department of Health (hereinafter collectively referred to as the State defendants) moved to dismiss for lack of subject matter jurisdiction and for failure to state a cause of action. NSLIJHS also moved to dismiss for improper commencement of a CPLR article 78 proceeding, for failure to state a cause of action and for defenses founded upon documentary evidence (see CPLR 3211[a][1], [7] ). Finding that the CPLR article 78 proceeding was improperly brought as such, Supreme Court exercised its discretion pursuant to CPLR 103(c) and converted the matter to an action for injunctive relief pursuant to Public Health Law § 2801–c. The court dismissed the claim for compensatory damages, found that the record established that NSUH's reasons for terminating plaintiff's clinical privileges and for not reappointing her to its medical staff were in good faith and found that nothing in NSUH's bylaws entitled plaintiff to maintain her clinical privileges after they expired and until a final determination was made by NSUH. Plaintiff now appeals the granting of defendants' motions dismissing the complaint, and we affirm.

Plaintiff argues that Supreme Court's dismissal of her complaint was improper because NSUH violated Public Health Law § 2801–b when it sought her termination and failed to reappoint her and renew her clinical privileges prior to the January 31, 2013 expiration of her appointment. A motion under CPLR 3211(a)(1) is properly granted " ‘only where the documentary evidence utterly refutes [the] plaintiff's factual allegations, conclusively establishing a defense as a matter of law’ " ( Trask v. Tremper Prop. Assn., Inc., 122 A.D.3d 1206, 1207, 997 N.Y.S.2d 805 [2014], quoting Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 [2002] ). "On a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a claim, we must afford the complaint a liberal construction, accept the facts as alleged in the pleading as true, confer on the nonmoving party the benefit of every possible inference and determine whether the facts as alleged fit within any cognizable legal theory" ( Graven v. Children's Home R.T.F., Inc., 152 A.D.3d 1152, 1153, 60 N.Y.S.3d 556 [2017] [internal quotation marks and citations omitted]; see Porco v. Lifetime Entertainment Servs., LLC, 147 A.D.3d 1253, 1254, 47 N.Y.S.3d 769 [2017] ; Torok v. Moore's Flatwork & Founds., LLC, 106 A.D.3d 1421, 1421, 966 N.Y.S.2d 572 [2013] ).

Under the Public Health Law, it is an improper practice for a hospital to deny privileges unless it gives reasons therefor, and those reasons must concern "standards of patient care, patient welfare, the objectives of the institution or the character or competency of the applicant" ( Public Health Law § 2801–b[1] ; see Matter of Fischer v. Nyack Hosp., 140 A.D.3d 1264, 1266, 32 N.Y.S.3d 714 [2016] ). "Where, as here, a physician alleges a violation of Public Health Law § 2801–b (1), the sole remedy available is to bring an application for injunctive relief" ( Bhard–Waj v. United Health Servs., Hosps., 303 A.D.2d 824, 825, 755 N.Y.S.2d 766 [2003] [citations omitted]; see Public Health Law § 2801–c ; Matter of Fischer v. Nyack Hosp., 140 A.D.3d at 1266, 32 N.Y.S.3d 714). "Judicial review of an alleged violation of Public Health Law § 2801–b(1) is ‘limited to whether the purported grounds were reasonably related to the institutional concerns set forth in the statute, whether they were based on the apparent facts as reasonably perceived by the administrators, and whether they were assigned in good faith’ " (Matter of Fischer v. Nyack Hosp., 140 A.D.3d at 1266, 32 N.Y.S.3d 714, quoting Bhard–Waj v. United Health Servs., Hosps., 303 A.D.2d at 825, 755 N.Y.S.2d 766 ). Further, "[i]t is not within the province of the court to determine whether a defendant was in fact justified in suspending the plaintiff's clinical privileges or whether the allegations against the plaintiff were in fact accurate" ( Matter of Tabrizi v. Faxton–St. Luke's Health Care, 66 A.D.3d 1421, 1421, 886 N.Y.S.2d 312 [2009], lv denied 13 N.Y.3d 717, 2010 WL 156918 [2010] ).

Plaintiff's August 2010 application for reappointment and clinical privileges reveals that plaintiff was asked if she, in the past 10 years, had "ever been denied membership or renewal thereof or been the subject of disciplinary action by any medical or dental organization including, but not limited to, hospitals or professional or managed-care companies." Plaintiff answered no to this question, and she does not dispute that she failed to truthfully answer this question on her reappointment application. Despite being required to do so under NSUH's bylaws, plaintiff also failed to promptly notify NSUH and to update her August 2010 reappointment application upon being informed in November 2010 by Forest Hills Hospital's appellate review committee that it had upheld the denial of her application for appointment at that hospital. In her July 2012 application for reappointment for the 2013–2015 cycle, plaintiff...