Opinion
No. 601902–15.
06-08-2015
Doris TAMAI, D.O., Plaintiff, v. SUFFOLK ANESTHESIOLOGY ASSOCIATES, P.C., Defendant.
Ruskin Moscou Faltischek, P.C., Uniondale, Attorneys for Plaintiff. Rosenberg Calica & Birney LLP, Garden City, Attorneys for Defendant.
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ORDERED that the motion by the plaintiff for a preliminary injunction is withdrawn; and it is further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 directly affected by the court's determination and the interest of the parties is an immediate consequence of the judgement (Id. ). The plaintiff is no longer pursuing employment that could result in a violation of the restrictive covenant, and a decision by the court in this matter would not determine an actual controversy between the parties (see, Saratoga County Chamber of Commerce v. Pataki, 100 N.Y.2d 801, 811, 766 N.Y.S.2d 654, 798 N.E.2d 1047 ). Contrary to SAA's contentions, the exception to the mootness doctrine found in Matter of Hearst Corp. v. Clyne (supra ), does not apply.
In Matter of Hearst Corp., the Court of Appeals held that a moot case may nonetheless be considered on the merits when it is demonstrated that there is: (1) a likelihood of repetition, either between the parties or among other members of the public, (2) a phenomenon typically evading review, and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues (50 N.Y.2d at 714–715, 431 N.Y.S.2d 400, 409 N.E.2d 876 ). SAA contends that this case presents a novel issue (i.e., whether restrictive covenants should be enforced in the field of anesthesiology) that is likely to be repeated either by the plaintiff, who may seek other employment during the restrictive convenant's remaining term, or by others. The court agrees with SAA that the issues raised herein are likely to be repeated, but finds that they are neither novel nor typically evading review.
The record reflects that, in addition to the plaintiff, two other physician-employees who are bound by restrictive covenants have left SAA's employ. In Suffolk Anesthesiology Assocs., P.C. v. Verdone (Sup Ct, Suffolk County, Sept. 28, 2009, Gazillo, J., Index No. 37932/08, aff'd 74 A.D.3d 953, 903 N.Y.S.2d 91 ), SAA sought to enforce the restrictive covenant against one of them, the defendant Matthew Verdone. SAA moved for a preliminary injunction, and both sides moved for partial summary judgment. This court (Gazillo, J.) denied the motion and cross-motion for partial summary judgment, but granted the preliminary injunction and enjoined Dr. Verdone from practicing anesthesiology within 20 miles of St. Catherine's. The court found that SAA had shown a likelihood of success on the merits, noting that covenants restricting professionals, and physicians in particular, from competing with their former employers are common and generally enforceable as long as they are reasonable as to time and area, necessary to protect legitimate interests, not harmful to the public, and not unduly burdensome (Id. at 5, 903 N.Y.S.2d 91 ).
The Appellate Division affirmed, finding that SAA had met its prima facie burden of establishing, inter alia, that the restraints sought were reasonably limited, that they were neither harmful to the public nor unduly burdensome, and that they served an acceptable purpose. Thus, both this court and the Appellate Division have passed on the question of whether restrictive covenants may be enforced against anesthesiologists, and both courts have answered that question in the affirmative. Accordingly, this case does not present a novel or important question not previously passed on and typically evading review.
Contrary to SAA's contentions, the action is moot, and the discontinuance should be without prejudice. In the absence of a violation of the restrictive covenant by the plaintiff, it appears that SAA is using this litigation to obtain a judicial determination that may be used against other physician-employees who are contemplating leaving its employ. The plaintiff cannot be forced to litigate a claim that is, at this point, academic so that SAA may obtain a determination on the enforceability of its restrictive covenant. Such a determination would have no direct impact on the plaintiff and would only serve to further SAA's use of the restrictive covenant as a sword rather than as a shield. If the plaintiff seeks other employment that implicates the restrictive covenant before the expiration of its term, either party may commence a new action. The discontinuance of this action with prejudice would allow SAA to commence a new action to enforce the restrictive covenant against the plaintiff, but prohibit the plaintiff from challenging the covenant except in defense of an action brought by SAA. The court finds that such a result would give SAA an unfair litigation advantage.
Turning to the purported counterclaim, the court finds that there is no counterclaim. The purported counterclaim is not denominated as such and is merely the converse of the relief sought by plaintiff's first cause of action. While the first cause of action seeks a judgment declaring that the restrictive covenant is unenforceable, the purported counterclaim seeks a judgment declaring that the restrictive covenant is enforceable. The purported counterclaim is, therefore, harmless surplusage, serving the function of a denial or, at most, a defense (Iovine v. Caldwell, 256 A.D.2d 974, 682 N.Y.S.2d 288 ). Moreover, a declaratory judgment action requires an actual controversy between genuine disputants with a stake in the outcome and may not be used as a vehicle for an advisory opinion (Watson v. Aetna Cas. & Sur. Co., 246 ADd2d 57, 62). As previously discussed, there is no longer an actual controversy between the parties, and any determination by the court on the enforceability of the restrictive covenant would be an advisory opinion.
In view of the foregoing, the motion to discontinue the action without prejudice is granted. SAA's motion, inter alia, for summary judgment dismissing the complaint is denied as academic, and the plaintiff's motion for a preliminary injunction has been withdrawn.