Tamai v. Suffolk Anesthesiology Assocs., P.C.

• Decision Date: 08 June 2015
• Docket Number: No. 601902–15.,601902–15.
• Citation: 17 N.Y.S.3d 386 (Table)
• Parties: Doris TAMAI, D.O., Plaintiff, v. SUFFOLK ANESTHESIOLOGY ASSOCIATES, P.C., Defendant.
• Court: New York Supreme Court

17 N.Y.S.3d 386 (Table)

Doris TAMAI, D.O., Plaintiff

v.SUFFOLK ANESTHESIOLOGY ASSOCIATES, P.C., Defendant.

No. 601902–15.

Supreme Court, Suffolk County, New York.

June 8, 2015.

Ruskin Moscou Faltischek, P.C., Uniondale, Attorneys for Plaintiff.

Rosenberg Calica & Birney LLP, Garden City, Attorneys for Defendant.

Opinion

ELIZABETH H. EMERSON, J.

Upon the following papers read on these motions for preliminary injunction; summary judgment and to discontinue action; Notice of Motion and supporting papers 4–17; 43–47; Notice of Cross Motion and supporting papers 19–22; Answering Affidavits and supporting papers 23–31; 48; Replying Affidavits and supporting papers 32–37; 49–50; Other 41–42; it is,

ORDERED that the motion by the plaintiff for a preliminary injunction is withdrawn; and it is further

ORDERED that the cross-motion by the defendant, inter alia, for summary judgment dismissing the complaint is denied as academic; and it is further

ORDERED that the motion by the plaintiff for an order discontinuing this action without prejudice is granted.

The plaintiff, an anesthesiologist, was employed by the defendant, Suffolk Anesthesiology Associates, P.C. (“SAA”). The plaintiff's employment agreement with SAA prohibited her from holding medical staff privileges at four hospitals in Suffolk County (St. Charles, Good Samaritan, John T. Mather, and Huntington) for a period of three years after leaving SAA. The plaintiff left SAA's employ on January 9, 2015, and was offered a position with Long Island Anesthesia Physicians (“LIAP”), which provided anesthesiology services at St. Charles and John T. Mather Hospitals. She subsequently received a letter from SAA, which was copied to LIAP, threatening legal action if she violated the restrictive covenant. The plaintiff commenced this action, inter alia, for declaratory and injunctive relief on February 25, 2015, after LIAP withdrew its offer of employment. She also moved by order to show cause dated February 26, 2014, for a temporary restraining order, which was granted in part, and a preliminary injunction, which was set down for a hearing on June 8, 2015. SAA cross moved, inter alia, for summary judgment dismissing the complaint. By a letter dated April 14, 2015, the plaintiff advised the court that she had found alternate employment that did not require her to maintain medical staff privileges at any of the four hospitals named in the restrictive covenant. She also advised the court that she was withdrawing her motion for a preliminary injunction and that she was seeking leave to discontinue this action against SAA without prejudice. By a letter of the same date, SAA objected to discontinuing the action without prejudice and argued that any discontinuance should be with prejudice. The plaintiff then moved pursuant to CPLR 3217(b) to discontinue the action without prejudice.

In support thereof, the plaintiff contends that, since she has found alternate employment that does not implicate the restrictive covenant, there is no longer any case or controversy for the court to decide and that any decision rendered by the court would be an advisory opinion. SAA contends in opposition that the matter is not moot because the plaintiff may, at some time in the future, seek employment at any of the four hospitals named in the restrictive covenant and because another physician-employee with a different restrictive covenant has left SAA's employ. SAA also contends that any discontinuance should be with prejudice and that, even if the court discontinues the action without prejudice, it would still be required to decide SAA's counterclaim for a judgment declaring the restrictive covenant to be enforceable.

A motion for leave to discontinue litigation pursuant to CPLR 3217 is addressed to the sound discretion of the court (Brown v. Garcia, 2 Misc.3d 915, 917, 771 N.Y.S.2d 837, citing Tucker v. Tucker, 55 N.Y.2d 378, 383, 449 N.Y.S.2d 683, 434 N.E.2d 1050 ). Generally, a party cannot be compelled to litigate a claim; and, absent special circumstances, a motion for leave to discontinue should be granted without prejudice (Id.; New York Mortgage Trust, Inc. v. Dasdemir, 116 A.D.3d 679, 985 N.Y.S.2d 86 ). A plaintiff should be permitted to discontinue an action at any time unless substantial rights have accrued or an adversary's rights would be prejudiced thereby (Brown v. Garcia, supra, citing Louis R. Shapiro, Inc. v. Milspemes Corp., 20 A.D.2d 857, 248 N.Y.S.2d 85 ). Also, the court should consider the stage that the litigation has reached. The later the stage, the more the court should scrutinize the plaintiff's motives (White v. County of Erie, 309 A.D.2d 1299, 1301 ; see also, Siegel, Practice Commentaries, McKinney's Cons Laws of NY, Book 7, CPLR C3217:12 at 745).

Here, the litigation is still in its infancy and substantial rights have not yet accrued. The hearing has not been held, and the court has not decided any of the pending motions. Although discovery was initially expedited, discovery was stayed after the court learned that the plaintiff wished to discontinue the action. Any delay, frustration, or expense incurred by SAA in the preparation of its contemplated defense does not constitute prejudice warranting denial of the motion (Hurrell–Harring v. State of New York, 112 A.D.3d 1213, 1215, 977 N.Y.S.2d 464 ). Moreover, the record does not reflect that the proposed discontinuance is based on any untoward motive or that it is being sought to gain an unfair litigation advantage (Id. ). Rather, the record reflects that the plaintiff wishes to discontinue the action due to changed circumstances, i.e., she is no longer seeking employment that would require her to work at any of the four hospitals named in the restrictive covenant.

Generally, courts should not pass on academic, hypothetical, moot, or otherwise abstract questions (New York City Transit Auth. v. Transport Workers Union of America, 15 Misc.3d 1129[A] at *2, citing Matter of Hearst Corp. v. Clyne, 50 N.Y.2d 707, 713–714, 431 N.Y.S.2d 400, 409 N.E.2d 876 ). A matter will be considered moot unless the rights of the parties will be...