Preview:

Starkand v Goldfarb 2010 NY Slip Op 30912(U) April 16, 2010 Supreme Court, Suffolk County Docket Number: 22202/2007 Judge: Paul J. Baisley Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication.

[* 1]

[* 2]

SHORT FORM ORDER

INDEX NO. 2220212007

SUPREME COURT - STATE OF NEW YORK

DCM-J - SUFFOLK COUNTY
PRESENT: Hon. Paul J. Baisley, Jr.
BETH L. STARKAND AND GARY S T A R I< A N D ,
ORIG. RETURN DATE: December 5, 2007 FINAL RETURN DATE: August 1 1.2008 MTN. SEQ. #: 001-MoiD 002-Mo tD 003-MD

Plaintiff( s), -againstSTEVEN R. GOLDFARB, M.D. AND MDVIP, INC., Defendant(s)
I

PLTF'S ATTORNEY: SILBERSTEIN, AWAD & MIKLOS, I T 600 OLD COUNTRY RD, STE 412 GARDEN CITY, N ' J 11530 DEFT'S ATTORNEY FOR GOLDFARB: GEISLER & GABRIEL];, LLP. 100 QUENTIN ROOSE'GLT BLVD GARDEN CITY, NY 11530 DEFT'S ATTORNEY FOR MDVIP: RIVKIN RADLER LLP 926 RXR PLAZA 11556 UNIONDALE, NY

Upon the following papers numbered 1 to 12 1 read on this motion to dismiss, cross motion to dismiss and cross motion to amend pleadings: Notice of Motion and supporting papers 1 - 3 1 ; Reply Affiimation/Affii-mation 111Opposition to Cross Motion and supporting papers 32 - 53; Notice of Cross Motion and supporting papers 54 6 5 ; Reply AffirlnatiorriAffirlnation In Opposition to Cross Motion and supporting papers 66 - 73; Notice of Cross Motion!Opposition to Motion and Cross Motion and supporting papers 74 - 1 16; Reply Affirination 1 17 - 12 1 : i t
IS,

(as

ORDERED that the motion (001 ) by tlie defendant MDVIP. h c . for dismissal of tlie complaint amended as ofright) as to it pursuant to CPLR 321 l(a)( 1 ) and CPLR 321 l ( a ) ( 7 )is granted, and i t I S slll-thcr ORDERED that thc defendaiit MDVIP, Inc. is hereby severed from the caption and this action

shall continue only as against the remaining iiamed defendant, Steven R. Goldfarb, M. D.; and i t is fui-the1

ORDERED that that part ofthe CI-oss inotion (002) by tlic defendant Stevcn R Goldfaib, M D Ibi
disiiiissal of the complaint (as amendcd as of right) as to I i i i i i pursuant to CPLR 321 I ( a ) (1 ), CPLli 33 1 1 ( a ) ( 7 )and CPLR 3 126 is granted oiily to the extent that the causes of' action souiiding 111 deccptivc business p i acticcs 111violation of GBL $349 (second cause of action), false advertising i n violation ofCBL $350 (third cause of action), breach of contract (fourth cause of action) aiid fi-aud (fifth cause of x t ~ o n ) x c dismissed, and i t is further

[* 3]

Page 2 Index 110. 22202/07 Starkand v. Goldf'arb

ORDERED that that part of the cross motion (002) seeking aii order to compel or to preclude

IS

decided to the extent that pursuant to 22 NYCRR 202.8(f), the remaining parties are directed to appeal- foici preliminary conference on May 19, 2010 at the Supreme Court, DCM Part, Roon? A362, One Court Street, Rivcrhcad, New York at 1O:OO a.m.; said date allowing time for the remaining defendant to serve an answer; and it is further

ORDERED that the cross motion (003) by the plaintiffs for leave to amend the c,omplaint is denied as moot 111 view of the plaintiffs having the right as a matter of law to amend the complaint without leave oftlie court pursuant to CPLR 3025(a).
The gravamen of this action is a medical malpractice claim against the defendant Steven R. Goldfirb, M.D. (hereinafter Dr. Goldfarb). The amended complaint includes claims against Dr. Goldfarb for violations of General Business Law sectioiis 349 (deceptive business practices) and 350 (false advci-tising),breach of contract, coiiinioii law fraud, lack of infomied consent and loss of consortiuiii. Each of these claims is also made against the co-defendant MDVIP, Inc. (hereinafter MDVIP). Background

The plaintiff Beth L. Starkand (hereinafter Starkand) (her husband, Gary Starkand, has the derivative claim) states in an affidavit accompanying her cross motion (003) that she learned of Dr. Goldfarb from a friend of hers who recoinmended him highly. Starkand then contacted Dr. Goldfarb's office to beconie a patient and was told that she first had to register with MDVIP.
MDVIP is a so-called concierge medical care group which, for an annual fee (in this case, S 1,500.00),provides its "members" access to an affiliated physician who will, inter alia.,provide an annual physical examination, a health risk assessment, cei-tain lab and diagnostic testing, a CD-ROM with the patient's medical infomiation and certain other amenities such as 24-hour physician availability, quick appoiiitments and ~inliurr-ied office visits. Mcmbership is obtained through a Mcmbership Agrecmcnt and the payiueiit of the fee. The affiliated physicians, according to MDVIP, are independent medical care providers who. if' accepted by MDVIP, become affiliated via a Participation Agreement in which the affiliatcd physicians .igrce to limit tlicir practices to no more than 600 patients i n order to provide the medical sei-vices and ,imenities offered to MDVIP members. Any mcdical services provided beyond the specific areas covered iii the Meiiibei ship Agreement, nic the rcsponsihility of the patient and his or her medical insurance coverage. Stnrkand also claims that she relied upon representations by MDVIP and Dr Goldfarb that MDVIP members n oiild be provided the highest quality mcdical services by exceptioiial physlclans and that shc "thought" Dr Goldfarb "worked for MDVIP" (Starltand affidavit, $1 1 )

[* 4]

Page 3 I d e s no. 22202107 Starkand v. Goldfarb MDVIP's Motion to Dismiss

MDVIP brings its motion to dismiss (001) based upon its contentions that MDVIP IS not a medical provider and, therefore, cannot be held liable for medical malpractice; MDVIP has no control or supewisioii of the medical services provided by its affiliated physicians and, thus, cannot be vicariously liable for the malpractice of its affiliated physicians; there was no reliance upon MDVIP representations n liich induced Starkand to becoine a ineiiiber and, in any event, MDVIP's web page and literature contained no iiiisrepreseiitatioiis.
In seeking this dismissal, MDVIP relies on the grounds of documentary evidence (CPLR 32ll[a][l]), failure to state a cause of action (CPLR 3211[a][7]) and failure to particularize tlie fraud claims (CPLR 301 6[b]).
iii support of this motion, MDVIP submits, inter alia, an exemplar of tlie purported Membership Agreement between Starkand, her husband and MDVIP, tlie Participation Agreement between MDVIP and Dr. Goldfarb, copies ofMDVlP web pages and an affidavit from an M D V P Executive Vice-President, Andrew Ripps.
111 order to prevail on a motion to dismiss on the basis of documentary evidence (CPLR 321 1[a][l]), the admissible documents niust coiiclusively resolve factual issues raised in the pleadings in Pmor of tlie iiioviiig party (see AG Cripital Fmding Partriel-s, L.P. v State Street Baiik arid Tf,zlsr Co., 5 NY3d 582,808 NYS2d 573 [2005]; New YorkSchools I m . Reccpr.ocnlv Gngliotti Assom., 305 AD2d 563, 759 NYSZd 372 [Zd Dept 20031.

As to the exemplar Membership Agreement, MDVIP (which does not deny it was sent the original signed Meiiibership Agreement by tlie Starkands) fails to submit a copy of the actual agreement and, moreover, provides no excuse or explanation for this omissioii. Notwithstanding Mr. Ripps' representation that the Starkands could not have become MDVIP members without signing an exact duplicate ofthe exemplar agreement, in the absence of any explaiiatioii for tlie production of at least a copy of the actual agreement, the court decliiies to accept the exemplar as documentary evidence of the Membership Agreement for purposes of a motion to dismiss pursuant to CPLR 321 1 (a)(1 ).
The othci- docuiiients submitted, however, which include the MDVIP web pages (also allitded to by tlic Starhands) and tlie Participation Agreenient with Dr. Goldfai-b, conclusively establish that MDVIP I S not `I provider of medical services, does not ciiiploy physicians but affiliates with independent physicians ~ v l i omeet tlicir standards and wlio agree to provide the specific sci-vices and amenities that MDVIP iiicmbers x e entitled to, and docs not control or supervise to any degree the medical services provided by 11s ciffiliatcd physicians (see Koherts 1' El-!fu/cil, 23 AD3d 733, 734, 804 NYS2d 81'3 [-?a Dept 2 0 0 S l . Lriy-crigirrl Stir)iirr.rluri Ilosp , 21 1 AD2d 878, 878-879, 621 NYS2d 21 7 [3d Dept 1 `)95])
11

Llnder such cii-cuiiistances, the documents considered 011 this application conclusively establish that MDViP cannot be held vicariously liable for the alleged medical malpractice of Dr Goldfarb.

[* 5]

Page 4 Iiidex 110.22202/07 Starkaiid v. Goldfarb

As to that pai-t of this motion seeking a disiiiissal foi- failure to state a cause of action, 111 general. ~iicoiisidei~ngamotiontodisiiiisspursuaiitto CPLR321 l(a)(7),thecourt'sroleis limikd to "determining whether a cause of action is stated within the four comers of the complaint, and iiot wliethci theie I S cvtdentiary support for the coiiiplaiiit [citations omitted]" ( F I T L J IDrrrniler CI?I-->sfei- , 292 AD2d ~ Cor-1) 118, 121,741 NYS2d9,12 [l"Dept2002],1~~~1enzetl99NY2d502,752NYS2d589] Iiiadditioii, [!0 ) ;02 the pleading "is to be afforded a liberal construction (CPLR 3026), and the court should accept as true the f x t s alleged 111 the complaint, accord the plaintiff the benefit of every possible inference, aiid only dctei-iiiiiie whcther the facts, as alleged, fit within any cogiiizable legal theory [citatioiis omitted]" (Id , `it 120- 12 1, 12) In addition, the court shall consider allegations as true in any affidavits in support of the complaint aiid i i i opposition to a motion to disiniss pursuant to CPLR 321 1 (see Gmssfield 1' Gr-ossficlrf, 224 AD2d 583,639 NYS2d 712 [2d Dept 19961).
13

The causes of action based upon violatioiis of the General Business Law sectioiis pertaiiiiiig to deceptive business practices (GBL $349) aiid false advertisiiig (GBL g350) require a showing that the acts in question impacted upon consumers at large (see Kurlzii 1 IVF Aniencci, h e . , 93 NY2d 282, 1 294,690 NYS2d 495 [1999]). Moreover, in the context of a medical iiialpractice action, these sectioiis of the Geiieral Business Law are not intended to supplant or augment what is esseiitially a iiiedical malpractice Kc~l-liii (VI; Aiiiei-icn, hie., s i p . u ) claim (see Gotlui 1' Letlemnn, 367 F Supp 2d 349 [EDNY 20051;
IJ

IS

As to the cause ofactioii for breach ofcontract, this too is inappropriate where the uiiderlyiiigclaiiii for medical malpractice.

The cause of action souiidiiig in commoii law fraud iiiust also be dismissed. This claim is also inappropriate iii a iiiedical iiialpractice action uiiless tlie plaintiffs can show injuries caused by the allcged fraud are different from the injuries alleged to be caused by the malpractice (see Vrgliotti ~'Nol-th Shore Uiir~, Nosp., 24 AD3d 752, 810 NYS2d 82 [2d Dept 20051). Such a showing is absent here. hi any evciit, based iipoii Starkaiid's own affidavit, she chose Dr. Goldfarb as her physician and joined MDVIP iiot on the basis of any representations made by either Dr. Goldfarb or MDVIP but upoii the recoiiiiiieiidatioii of a "fiieiid." Accordingly, by her owii adniissioii, Starkaiid caiiiiot c l a m to have relied o i i represciitatioiis, a c i i if false, made by MDVIP or Dr. Goldfarb. The cause of action souiidiiig i n lack of iiifoi-iiied coiisent caii oiily be viable against MDV IP I I MDVIP can be foiuiid to be vicariously liable. As discussed above, there is no basis for fiiiding t h a t MDVIP I S . icdriously liable here

In opposition, Starkand argues that after contacting Di . Goldfarb to bccome a pstieiit aiid then `il'tci contacting MDVIP to becoiiie a meiiiber so she could avail herselfof Dr. Goldfarb's medical serviccs, shc loi iicd MDVIP bascd up011 her belief aiid understanding that MDVIP "was providing hese physic~ans <is its own (Staihaiid affidcivit, 1 7 She also iefeis to MDVlP's website aiid other Iiteiature <ispia ~ d i i i g 1) ,tllegedly false iepi esentatioiis which induced her to join MDVIP and to select DI Goldfarb
It is clcai-, however, from Starkaiid's owii words, that she became ii iiiembei o f MDVIP b e c u s e she wanted Dr Goldfarb to be her physician aiid that she wanted Dr. Goldfarb to bc her physician based upon the reconimendation of a "friend." Even though tlie website and literature make iio pioiiiises or guarantecs as to preventing illnesses, slic, in any event, did iiot rely upon them In joiniiig MDVIP or i n selecting Dr Goldfarb.

[* 6]
Page 5 Index no. 22202/07 Starkand v Goldfarb Accordingly, based upon the documentary evidence accepted on this motion - which "flatly" contradicts the allegations in the amended complaint (Ullriiaii 1' Nol-n2cr Kcininli. Iue., 207 AD2d 691, 692, 01 6 NYS2d 583 [ l '' Dept 1994]), a review of the entirety of the complaint, a reading of the Stai-ltaiid affidavit in opposition to this motion to dismiss and upon consideration of the arguments in opposition, the court finds that it is conclusively established that there are no viable causes of act:lon against MDVIP (see iilso Pcii-olci, Gross & Mar-ino,P. Suskiiicl, 43 AD2d 1020, 102 1-1022, 843 NYS2d 104 [2d Dept C. 20071). Therefore, the complaint is dismissed in its entirety as to MDVIP Dr. Goldfarb's Cross Motion to Dismiss,&

Dr. Goldfarb cross-moves (002) for dismissal of the complaint (as amended) on the same grounds In addition, Dr. Goldfarb seeks an order to compel pursuant to CPLR 3 124 and CPLR 3042(c) and to preclude pursuant to CPLR 3 126.
<is MDVIP.

Unlike MDVIP, Dr. Goldfarb is a physician and a provider of medical services. Indeed, Dr. Goldfarb is the treating physician whose medical services, it is claimed, were the basis for the medical in alpract ice cl aiin .

A review of the complaint in its entirety, affiimations from physicians, as well as the affidavit submitted by Starland, shows adequate support for claims of malpractice and lack of consent against Dr. Go Id farb .
The General Business Law claims are insufficient for the same reasons as stated with regard to MDVIP's motion to dismiss. This also applies to the causes of action for breach of contract aiid fi-aid. Accordingly, the second (GBL

Download 2010_30912.pdf

New York Law