654 N.Y.S.2d 862 | N.Y. App. Div. | 1997
Appeal from that part of an order of the Supreme Court (Ceresia, Jr., J.), entered June 17, 1996 in Albany County, which partially denied defendants’ motion for summary judgment dismissing the complaint.
In May 1991, plaintiff, a graduate of Albany Medical College, signed an employment agreement with defendant Albany Medical Center (hereinafter AMC) to work on its house staff as a resident in the Department of Neurology for the period July 1, 1991 to June 30, 1992, under the supervision of defendant Neil S. Lava, the head of the Neurology Residency Program.
Subsequently, an incident occurred on April 22, 1992,
Plaintiff was apparently not accepted into another residency program for the period between July 1, 1992 and June 30, 1993, and he thereafter commenced this action for damages alleging four causes of action: (1) breach of employment contract with AMC against both defendants, (2) prima facie tort against both defendants, (3) intentional interference with the contractual relationship between plaintiff and AMC by Lava, and (4) intentional interference with contractual relationship against both defendants with respect to plaintiff’s prospective employment with St. Clare’s. Following joinder of issue, defendants moved for summary judgment and Supreme Court dismissed the second and third causes of action but denied the motion with respect to the first and fourth causes of action. Defendants appeal.
Plaintiff’s first cause of action alleges that defendants breached the employment contract when they discharged him without just and sufficient cause. In order to prevail on the motion for summary judgment, it was incumbent on defendants, as movant, to "make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; see, CPLR 3212 [b]). Here, in support of their motion, defendants submitted an affidavit by Lava, who averred that the circumstances which precipitated plaintiff’s termination constituted good cause.
It is undisputed that on April 22, 1992, during his physical examination of a 15-year-old female patient, plaintiff did not have a female staff member present nor was the patient’s mother present in the examining room. It is also undisputed that plaintiff did not have the patient change into a surgical gown. When plaintiff began his examination of the patient’s heart, he asked her to remove the left side of her bra whereupon he placed the stethoscope directly on her skin. He thereafter had the patient open and lower her pants so that he could examine her inguinal lymph nodes, located in the groin area. As the physical examination was proceeding, the mother entered the examination room and asked the patient if she felt comfortable with the examination; the patient said "no” and the examination ended. Lava subsequently interviewed the mother and patient in plaintiff’s absence and the mother allegedly told him that she was not allowed to remain in the examining room despite repeated requests to do so. In our view, there was sufficient evidence presented by defendants to establish good cause for plaintiff’s termination and to meet defendants’ initial burden on the motion for summary judgment.
Nevertheless, plaintiff’s opposition papers, which included plaintiff’s own affidavit, raised a material issue of fact as to whether there was, in fact, good cause to terminate him. Specifically, plaintiff averred that the examination of. the patient was proper, that there was no written or unwritten policy at AMC that a patient need be completely disrobed and given a surgical gown prior to examination, that neurological testing can be performed without the patient disrobing, that on April 22, 1992 there were no female staff members available to accompany him in the patient’s physical examination and that the mother had never requested to remain in the examination room. Construing the facts in a light most favorable to plaintiff, the nonmoving party (see, Russell v A. Barton Hepburn Hosp., 154 AD2d 796, 797), we conclude that plaintiff’s proof, constituting more than conclusory allegations, was sufficient to raise a material issue of fact as to the issue of good cause for termination; therefore, summary judgment was properly denied on the first cause of action.
Nevertheless, although the parties were not business competitors (see, Butler v Delaware Otsego Corp., 234 AD2d 639), it appears that the fourth cause of action alleges a claim of tortious interference with prospective business relations. Significantly, "[i]n order to recover damages for interference in such a situation, plaintiff was required to show that [defendants] used 'wrongful means’ ” (Home Town Muffler v Cole Muffler, 202 AD2d 764, 766; see, NBT Bancorp v Fleet/ Norstar Fin. Group, supra; Etkin & Co. v Patrusky, supra; Butler v Delaware Otsego Corp., supra).
Here, plaintiff maintains that Lava caused St. Clare’s to rescind its employment offer by wrongfully relaying the information that plaintiff had been terminated from his employment when he allegedly was only suspended pending a hearing. No
Crew III, White, Casey and Carpinello, JJ., concur. Ordered that the order is modified, on the law, without costs, by reversing so much thereof as denied defendants’ motion for summary judgment dismissing plaintiff’s fourth cause of action; motion granted to that extent and said cause of action dismissed; and, as so modified, affirmed.
. The employment contract provided, as is relevant here, that plaintiff’s appointment as a member of house staff was subject to AMC’s bylaws and that plaintiff "may be terminated by [AMC] in accordance with its [bylaws] or for breach of the terms of the [employment contract] by the Resident/ Fellow”. The bylaws provided that AMC’s Medical Board could, on its own initiative or after receipt of written charges from a Chief of Service, suspend or revoke the house staff membership of any employee for "good cause”.
. To the extent that certain cases from the Second Department indicate that the subject cause of action may be maintained in the absence of wrongful means (see, e.g., Bogdan v Peekskill Community Hosp., 211 AD2d 692; Datlow v Paleta Intl. Corp., 199 AD2d 362, 363; Slifer-Weickel, Inc. v Meteor Skelly, 140 AD2d 320, 322), we respectfully disagree.
. According to Dufresne, credit for plaintiff’s year of residency at AMC was a nonwaivable requirement and plaintiff had previously given the impression that he was receiving such credit.