Prohealth Care Assoc., LLP v. April, 2004 NY Slip Op 50919(U) (NY 8/18/2004)
| Decision Date | 18 August 2004 |
| Docket Number | 15830-03. |
| Citation | 2004 NY Slip Op 50919(U) |
| Parties | PROHEALTH CARE ASSOCIATES, LLP Plaintiff, v. MAX APRIL, M.D. and ROBERT F. WARD, M.D., Defendants. |
| Court | New York Court of Appeals Court of Appeals |
Garfunkel, Wild & Travis, P.C., Great Neck, New York, Counsel for Plaintiff.
Shaub, Ahmuty, Citrin & Spratt, LLP, New York, New York, Counsel for Defendant.
Defendants, Max April ("Dr. April") and Robert F. Ward ("Dr. Ward"), move for an order pursuant to CPLR 3016(b), 3211(a)(1) and/or 3211(a)(7) dismissing the complaint.
Drs. April and Ward are medical doctors specializing in otolaryngology.
Plaintiff ProHealth Care Associates, LLP ("ProHealth") is a limited liability partnership engaged in providing medical care and services. ProHealth has partners and employees, who are doctors and other health care providers practicing in several medical specialties. As a result, ProHealth is able to provide its patients with primary and specialized medical care through one organization which is located in Nassau County.
By separate agreements dated March 1, 1998, Drs. April and Ward became partners in ProHealth and co-chiefs of its Division of Otolaryngology. Their partnership agreements were amendments to the master partnership agreement which contemplated adding new partners who specialize in different areas. By agreeing to be a partner in ProHealth, Drs. April and Ward agreed to be bound by the partnership agreement except as modified in their agreement.
The March 1, 1998 agreements provide that Drs. April and Ward would be working at ProHealth on a part-time basis. The March 1, 1998 agreement excludes from the restrictive covenant contained in the ProHealth master partnership agreement medical services rendered by Dr. April or Dr. Ward at their New York City office.
By letter dated June 4, 2003, Dr. April advised ProHealth that he was withdrawing as co-chief of the Division of Otolaryngology effective September 2, 2003.
His withdrawal from the partnership was acknowledged in a letter from the managing partner of ProHealth.
Dr. Ward has never submitted a letter or in any other way communicated to ProHealth that he was resigning as co-chief of ProHealth's Division of Otolaryngology.
Neither Dr. April nor Dr. Ward have submitted a writing indicating that they were resigning as partners of ProHealth.
As best can be determined from the papers, Drs. April and Ward, on an unstated date between June 4, 2003 and September 2, 2003, simply stopped coming to work at ProHealth's facilities. On an unstated date after June 4, 2003, Drs. April and Ward opened an office for the practice of medicine in Woodbury, New York.
ProHealth commenced this action seeking injunctive relief and to recover damages allegedly sustained as a result of the actions of Drs. April and Ward during, and subsequent to, their tenure at ProHealth. The complaint alleges seven causes of action. The first cause of action seeks injunction relief. The second through seventh causes of action seek money damages on various theories primarily involving alleged breaches of their fiduciary duty to ProHealth, fraud, unfair competition and breach of their obligations to ProHealth pursuant to the partnership agreement. Among Plaintiff's allegations, it is claimed that Drs. April and Ward took patient records and files as well as other proprietary information and used such information to solicit ProHealth patients.
ProHealth relies upon the ProHealth master partnership agreement and the agreements between ProHealth and Drs. April and Ward dated March 1, 1998 admitting them as partners. No execute copy of the Partnership Agreement has been submitted. In any event, Drs. April and Ward were not partners in ProHealth when the partnership was formed.
The parties concede that the relationship between Drs. April and Ward and ProHealth was governed by the Partnership Agreement and that Drs. April and Ward received their partnership draw in accordance with the terms of the Partnership Agreement.
CPLR 3211(a)(1) provides for the dismissal of an action based upon documentary evidence. In order to obtain such a dismissal, the Defendant must establish that the documentary evidence conclusively establishes a defense to the action as a matter of law. Leon v. Martinez, 84 NY.2d 83 (1994). See also, 730 J & J LLC v. Fillmore Agency, Inc., 303 A.D.2d 486 (2nd Dept., 2003); and Berger v. Temple Beth-el of Great Neck, 303 A.D.2d 346 (2nd Dept., 2003).
CPLR 3211(a)(7) permits the court to dismiss an action or a cause of action contained in a pleading that fails to state a cause of action.
When deciding a motion made pursuant to CPLR 3211(a)(7), the court must accept as true all of the facts alleged in the complaint and any factual submissions made in opposition to the motion. 511 West 232rd Street Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144 (2002); and Sokoloff v. Harriman Estates Development Corp., 96 N.Y.2d 409 (2001). The court must also give the pleader the benefit of every inference which may be drawn from the pleading. Leon v. Martinez, supra. See also,Dye v. Catholic Medical Center of Brooklyn & Queens, Inc., 273 A.D.2d 193 (2nd Dept., 2000).
When considering a motion made pursuant to CPLR 3211(a)(7), the court must read the complaint to determine if the plaintiff has any cognizable cause of action and not whether the cause of action has been properly plead. Guggenheimer v. Ginzburg, 43 N.Y.2d 268 (1977); and Rovello v. Orofino Realty Co., 40 N.Y..2d 633 (1976). See also, Frank v. DaimlerChrysler Corp., 292 A.D.2d 118 (1st Dept., 2002); and Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 A.D.2d 159 (2nd Dept., 1997).
While the allegations in the complaint are deemed true and afforded every favorable inference, legal conclusions and facts contradicted on the record are not entitled to such a presumption. In re Loukoumi, Inc., 285 A.D.2d 595 (2nd Dept., 2001); and Doria v. Masucci, 230 A.D.2d 764 (2nd Dept., 1996).
The first cause of action seeks a preliminary and permanent injunction enjoining April and Ward from soliciting any of the patients they treated while partners in ProHealth; from soliciting business from any patients treated by other physicians at ProHealth; and from converting ProHealth's patient files.
The allegations relating to this cause of action are that the Defendants, as partners in ProHealth, owed ProHealth a fiduciary duty and duty of loyalty. ProHealth asserts that by taking patient files and soliciting patients of ProHealth, Drs. April and Ward violated this duty.
Plaintiff has not moved for a preliminary injunction. Thus, the only issue is whether ProHealth can obtain permanent injunctive relief.
The allegations in the complaint and the documentary evidence, which must be accepted as true for the purposes of this motion, allege that Drs. April and Ward are partners in ProHealth. As partners in ProHealth, they owed their other partners and the partnership a fiduciary duty and a duty of loyalty and good faith. Gibbs v. Breed, Abbott & Morgan, 271 A.D.2d 180 (1st Dept., 2000).
However, a doctor's patients are not like customers of other businesses. The physician-patient relationship is confidential. CPLR 4504. Information provided by a patient to a physician for the purposes of obtaining treatment may not be revealed unless the privilege has been waived.
A limited liability partnership is a general partnership that acquires certain limited liability characteristics upon registration with the Secretary of State. Partnership Law §121-1500. See also, Matter of Joachim v. Flanzig, 3 Misc.3d 371 (Sup. Ct., Nassau Co. 2004); and 16 NY Jur2d Business Relationships §2271.
A partnership does not practice medicine and does not have patients. The physicians, who are partners in a medical practice such as Plaintiff, practice medicine and have patients. Lewis v. Clement, 1 Misc.3d 464 (Sup. Ct., Monroe Co. 2004). See also, United Calendar Manufacturing Corp. v. Huang, 94 A.D.2d 176 (2nd Dept., 1983). Therefore, the patients who Dr. April and/or Dr. Ward treated while they were partners in ProHealth are their patients. Drs. April and Ward cannot be enjoined or prevented from notifying their patients that they are no longer associated with ProHealth and providing those patients with their current office address. United Calendar Manufacturing Corp. v. Huang, id.
However, neither Dr. April nor Dr. Ward have the right to obtain the names and records of the patients who they did not treat at ProHealth where such patients were treated by other doctors or health care professionals of ProHealth. Nor may Defendants notify those patients that they have established a new office. Patient lists may be confidential information. Allan Dampf, P.C. v. Bloom, 127 A.D.2d 719 (2nd Dept, 1987). To the extent that ProHealth seeks to enjoin such use of its confidential information, the first cause of action states a cause of action upon which relief can be granted.
ProHealth also seeks to enjoin Drs. April and Ward from converting patient records. The issue in this regard relates to whether these are records of patients treated by Drs. April and Ward or whether these are records of other doctors' patients.
Medical records and notes which contain entries relevant to medical history, examination, treatment or care are the property of the doctor who provided the care or treatment. Lewis v. Clement, supra; and In the Matter of Culbertson, 57 Misc.2d 391 (Surr. Ct. Erie Co. 1968).
Conversion involves exercising control over specific items of personalty contrary to the rights of the owner or one with a superior right of possession. Fiorenti v. Central Emergency Physicians, PLLC, 305 A.D.2d 453 (2nd Dept., 2003); and Hart v. City of Albany, 272 A.D.2d 668 (3rd Dept., 2000). Drs. April...
To continue reading
Request your trial