Opinion
09-12-2017
Suarna MEHULIC, M.D., Plaintiff–Appellant, v. NEW YORK DOWNTOWN HOSPITAL, Defendant–Respondent.
Suarna Mehulic, appellant pro se. Epstein Becker & Green, P.C., New York (Victoria Sloan Lin of counsel), for respondent.
Suarna Mehulic, appellant pro se.
Epstein Becker & Green, P.C., New York (Victoria Sloan Lin of counsel), for respondent.
FRIEDMAN, J.P., RENWICK, MANZANET–DANIELS, KAPNICK, GESMER, JJ.
Order, Supreme Court, New York County (Shlomo Hagler, J.), entered August 12, 2016, which granted defendant's motion for summary judgment dismissing plaintiff's amended complaint, unanimously reversed, on the law, without costs, and the motion denied.
The motion court properly deemed defendant's summary judgment motion timely because it was made (that is, served) within 60 days after the filing of the note of issue, as per the court's directive to the parties ( CPLR 2211, 3212 [a]; see Corchado v. City of New York, 64 A.D.3d 429, 883 N.Y.S.2d 33 [1st Dept.2009] ).
However, the motion court erred in finding that plaintiff's retaliation claim under Labor Law § 741 is completely barred by collateral estoppel. The issue of whether defendant hospital terminated plaintiff doctor because she reported inadequate medical care to her supervisors, and later, the Department of Health was not at issue in the prior administrative proceedings and related article 78 proceeding, and was not necessarily decided in the prior proceedings ( Buechel v. Bain, 97 N.Y.2d 295, 303–304, 740 N.Y.S.2d 252, 766 N.E.2d 914 [2001], cert. denied 535 U.S. 1096, 122 S.Ct. 2293, 152 L.Ed.2d 1051 [2002] ; Gramatan Home Invs. Corp. v. Lopez, 46 N.Y.2d 481, 485, 414 N.Y.S.2d 308, 386 N.E.2d 1328 [1979] ). The earlier proceedings were initiated by the Department of Health's Office of Professional Medical Conduct (OPMC) to determine whether plaintiff, then a not yet licensed second-year resident, should be able to pursue a medical license in New York, and under what conditions (see Stevenson v. Goomar, 148 A.D.2d 217, 221, 544 N.Y.S.2d 690 [3d Dept 1989], lv. dismissed 74 N.Y.2d 945, 550 N.Y.S.2d 278, 549 N.E.2d 480 [1989] ). The prior rulings determined that plaintiff had engaged in professional incompetence on three occasions, and that defendant did not fabricate the allegations, but there was no express or implied ruling that defendant terminated her employment on the basis of that incompetence, or whether in terminating her, defendant had impermissibly retaliated against her for whistleblowing (see Matter of Mehulic v. State Bd. for Professional Med. Conduct, 107 A.D.3d 1066, 967 N.Y.S.2d 183 [3d Dept.2013], appeal dismissed 22 N.Y.3d 911, 975 N.Y.S.2d 731, 998 N.E.2d 395 [2013] ; cf. Humphries v. City Univ. of N.Y., 146 A.D.3d 427, 44 N.Y.S.3d 401 [1st Dept.2017] [retaliation claim was barred by collateral estoppel where, among other things, the issue was decided in prior proceeding], and Matter of Khan v. New York City Health & Hosps. Corp., 144 A.D.3d 600, 602, 43 N.Y.S.3d 271 [1st Dept.2016], lv. denied 29 N.Y.3d 905, 2017 WL 1591009 [2017] [same] ). Thus, while plaintiff is precluded from relitigating the three instances of incompetence found in the prior proceedings, collateral estoppel does not otherwise bar litigation of plaintiff's retaliation claim.
In response to defendant's prima facie showing that the termination of plaintiff's employment was predicated upon grounds other than her exercise of any rights under Labor Law § 741 (see Labor § 741[5] ), plaintiff submitted evidence to raise triable issues of fact ( Berde v. North Shore–Long Is. Jewish Health Sys., Inc., 50 A.D.3d 834, 836, 855 N.Y.S.2d 656 [2d Dept.2008] ).