Rizvi v. N. Shore Hematology-Oncology Assocs., P.C.

• Decision Date: 04 November 2020
• Docket Number: 617346/2019
• Citation: 132 N.Y.S.3d 600 (Table),69 Misc.3d 1212 (A)
• Parties: Hasan A. RIZVI, M.D., Plaintiff, v. NORTH SHORE HEMATOLOGY-ONCOLOGY ASSOCIATES, P.C. d/b/a/ New York Cancer & Blood Specialists, Jeffrey Vacirca, M.D., Gerry Rubin, M.D., and John Doe 1-10, Defendants.
• Court: New York Supreme Court

69 Misc.3d 1212 (A)

132 N.Y.S.3d 600 (Table)

Hasan A. RIZVI, M.D., Plaintiff,

v.NORTH SHORE HEMATOLOGY-ONCOLOGY ASSOCIATES, P.C. d/b/a/ New York Cancer & Blood Specialists, Jeffrey Vacirca, M.D., Gerry Rubin, M.D., and John Doe 1-10, Defendants.

617346/2019

Supreme Court, Suffolk County, New York.

Decided on November 4, 2020

MICHAEL B. SCHULMAN & ASSOCS., 225 Broadhollow Road, Suite 205E, Melville, NY 11747

COHEN COMPAGNI BECKMAN APPLER, 507 Plum Street, Suite 310, Syracuse, NY 13204

James Hudson, J.

As per the Stipulation of the Parties dated January 28th, 2020, the Decision of this Court dated January 23rd, 2020 is vacated and set aside. Upon consideration of the original motion (seq. no.: 001), it is

ORDERED that Defendants North Shore Hematology-Oncology Associates ("NSHOA"), Jeffrey Vacirca, M.D. ("Dr. Vacirca"), and Gerry Rubin, M.D. ("Dr. Rubin"), motion for an Order dismissing Plaintiff's Complaint is granted in part and denied in part ( CPLR Rule 3211(a)(4), (7) . It is further

ORDERED that the portion of Plaintiff's second Cause of Action, sounding in defamation, is dismissed as to the allegations arising from the statements purportedly made by the NSHOA staff. The portion of the second Cause of Action arising from a letter allegedly written to Good Samaritan Hospital, however, has been sufficiently pled. It is further

ORDERED that Plaintiff's third Cause of Action, sounding in Abuse of Process, is dismissed. It is further

ORDERED that Defendants' motion for consolidation of the instant case with the action under Index No.: 604833/2019 entitled North Shore Hematology-Oncology Associates, P.C. d/b/a New York Cancer & Blood

Specialists v. Hasan A. Rizvi, M.D. is denied (CPLR Sec. 60[a] ) ; It is further

ORDERED that Defendants request for the imposition of sanctions in the form of costs and Attorneys' fees is denied ( 22 NYCRR Sec. 130-1.1 ).

In their instant motion, the Defendants, "NSHOA", Jeffrey Vacirca, M.D. ("Dr. Vacirca"), and Gerry Rubin, M.D. ("Dr. Rubin"), seek an order, pursuant to CPLR Rule 3211(a)(4), (7) , to dismiss Plaintiff's First, Second, and Third Causes of Action due to there being another action pending between the same Parties and due to the failure of each Cause of Action to state a claim upon which relief may be granted. Prior to analyzing the respective arguments concerning the motion, the Court must commend Counsel for the quality of their briefs on behalf of their clients. Such advocates honor the profession of law.

In 2015, NSHOA purchased Plaintiff Hasan A. Rizvi, M.D.'s ("Dr. Rizvi") practice, Progressive Oncology. On or about May 1st, 2015, NSHOA and Dr. Rizvi entered into a written Employment Agreement. This document provided, inter alia , that Dr. Rizvi would work in North Shore Hematology-Oncology Progressive Oncology Division as its President. In 2018 Dr. Rizvi's Employment Agreement was renewed for a one-year term to expire on April 30th, 2019. On December 31st, 2018, NSHOA provided written notice to Dr. Rizvi of its intent not to renew the Employment Agreement. Thereafter, NSHOA provided notice to Dr. Rizvi instructing him to cease providing professional services on behalf of NSHOA. NSHOA continued to compensate Dr. Rizvi for the remainder of the term of his Employment Agreement.

NSHOA filed a Verified Complaint (hereinafter referred to as the "First Action"), alleging five Causes of Action against Dr. Rizvi arising out of an alleged violation of a covenant-not-to-compete contained in the Employment Agreement. On March 15th, 2019, this Court issued a Temporary Restraining Order ("TRO") in the First Action, enjoining and restraining Dr. Rizvi from violating the restrictive covenant provisions of the Contract, including actively soliciting the patients of NSHOA pursuant to Paragraph 12(a) of the Employment Agreement and directly or indirectly soliciting the employees of NSHOA as set forth in Paragraph 12(b) of the Employment Agreement. Thereafter, NSHOA filed an Amended Verified Complaint in the First Action alleging ten Causes of Action against Dr. Rizvi. On April 25th, 2019, an Order of this Court was entered granting NSHOA a Preliminary Injunction against Dr. Rizvi, enjoining him from violating the restrictive covenants of his Employment Agreement. Subsequently, Dr. Rizvi interposed his Answer with counterclaims in the First Action.

On June 18th, 2019, NSHOA's Counsel purportedly sent a letter to Dr. Donald Teplitz, D.O., Superintendent of Medical Affairs and Chief Medical Officer of Good Samaritan Hospital. The letter stated that it had come to Dr. Vacirca's attention that Good Samaritan Hospital had contacted Dr. Rizvi instead of Dr. Vacirca when one of Dr. Vacirca's patients had been admitted to the Hospital. The letter also stated that NSHOA secured a Permanent Injunction against Dr. Rizvi, enjoining him from soliciting NSHOA's patients, but Dr. Rizvi was continuing to treat and solicit treatment from NSHOA's patients, in violation of the Injunction. Defendants maintain that calling the injunction a "permanent injunction" instead of a "preliminary injunction" was a typographical error. On or about July 10th, 2019, Dr. Rizvi's Counsel sent NSHOA's Counsel a cease and desist letter that directed NSHOA to refrain from communicating with Good Samaritan Hospital regarding Dr. Rizvi.

Defendants seek dismissal of all the Causes of Action against them, namely: tortious interference with prospective business advantage; defamation; and abuse of process.

CPLR Rule 3211 provides, in pertinent part:

"(a) Motion to dismiss cause of action. A party may move for judgment dismissing one or more causes of action asserted against him on the ground that...

4. there is another action pending between the same parties for the same cause of action in a court of any state or the United States; or...

7. the pleading fails to state a cause of action"

" CPLR 3211 is a purely mechanical device, a procedural Statute through and through [w]hether dismissal is warranted in a given situation will depend on law (substantive, procedural or both) that comes from outside CPLR 3211's borders" (John R. Higgitt, Practice Commentaries, McKinney's C:3211:1 [2018] ) . "An order granting a CPLR 3211(a) motion is not a disposition on the merits of the action (unless the motion was properly converted to a summary judgment motion). Rather it is res judicata of whatever was determined" ( Siegel, NY Prac. § 276 [Connors 6th ed.] ) .

The Court notes that the Defendants have moved to dismiss under subdivision (a)(4) and (a)(7) of CPLR 3211. These subdivisions require a separate analysis.

Under CPLR 3211(a)(4)

"a court has broad discretion in determining whether an action should be dismissed on the ground that there is another action pending between the same parties for the same cause of action (see Whitney v. Whitney , 57 NY2d 731, 732, 454 N.Y.S.2d 977, 440 N.E.2d 1324 (1982) ; Cherico, Cherico & Assoc. v. Midollo , 67 AD3d 622, 886 N.Y.S.2d 914 [2nd Dept.2009] ). A court may dismiss an action pursuant to CPLR 3211(a)(4) where there is a substantial identity of the parties, the two actions are sufficiently similar, and the relief sought is substantially the same (see Scottsdale Ins. Co. v. Indemnity Ins. Corp. RRG , 110 AD3d 783, 784, 974 N.Y.S.2d 476 [2nd Dept. 2013] ; Matter of Willnus , 101 AD3d 1036, 1037, 957 N.Y.S.2d 229 [2nd Dept.2012] ). It is not necessary that "the precise legal theories presented in the first action also be presented in the second action" (Matter of Willnus , supra at 1037; see Syncora Guar. Inc. v. J.P. Morgan Sec. LLC , 110 AD3d 87, 96, 970 N.Y.S.2d 526 [1st Dept.2013] ; Simonetti v. Larson , 44 AD3d 1028, 1029, 845 N.Y.S.2d 369 [2nd Dept.2007] ). The critical element is whether both suits arise out of the same subject matter or series of alleged wrongs (see Scottsdale Ins. Co. v. Indemnity Ins. Corp. RRG , supra at 784; DAIJ, Inc. v. Roth , 85 AD3d 959, 960, 925 N.Y.S.2d 867 [2nd Dept. 2011] ; Cherico, Cherico & Assoc. v. Midollo , supra at 622)." ( Jadron v. 10 Leonard St., LLC , 124 AD3d 842, 843, [2nd Dept. 2015] 2 N.Y.S.3d 563, 565 ).

Applying the criteria discussed above, it is apparent that the Defendants' application under CPLR 3211(a)(4) is untenable. The Defendants have established that the Parties to the First Action are substantially similar to the Parties in the instant case. This, however, is only one of the elements needed to prevail. As pointed out by Plaintiff's Counsel, the two Actions are not sufficiently similar nor do they arise out of the same subject matter or series of alleged wrongs. The First Action relates the breach of an employment agreement between Dr. Rizvi and North Shore. The case at bar describes tortious interference with prospective business advantage and defamation as the result of a letter NSHOA sent to Good Samaritan Hospital. These are separate facts and legal issues, and there would likely be little overlap in testimony. Accordingly, the request of Defendants that Plaintiff's First, Second, and Third Causes of Action be dismissed pursuant to CPLR Rule 3211(a)(4) must be denied.

We now turn our attention to that aspect of Defendants' motion which seeks dismissal under CPLR Rule 3211(a)(7) .

In analyzing the sufficiency of a pleading, it is illustrative to compare New York's practice with its Federal counterpart.

Under the rule in Conley v. Gibson , 355 U.S. 41, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957), there was no substantive difference in pleading requirements between Federal and our State Courts. As Mr. Justice Black stated "the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." ( Id. 45-46 ). In one of the first cases to discuss the newly enacted CPLR, Foley v. D'Agostino , 21 AD2d 60, 63, 248 N.Y.S.2d 121, 125 (1st Dept. 1964), the Court held that "generally speaking, ‘pleadings should not be...