The Court has considered the following in consideration of its determination: 1. Notice of Motion (Seq. 004), Affirmation in Support, Exhibits in Support (Doc 93-129) 2. Notice of Cross Motion (Seq. 005), Affidavits, Affirmation, and Exhibits in Opposition (Doc 132-151) 3. Reply to Opposition, Opposition to Cross Motion, Exhibits (Doc 153-157) 4. Reply to Opposition to Cross Motion, Exhibits (Doc. 158, 159) It is ORDERED that the Defendants’ motion (Mot. Seq. 004) seeking summary judgment dismissing the action is granted; and it is further ORDERED that the Plaintiff’s motion (Mot. Seq. 005) seeking a stay of the action is denied. In this action alleging tortious interference and prima facie tort, the Plaintiff seeks damages from the Defendants for allegedly interfering with an employment agreement between the Plaintiff and non-party Dr. Bleecher by hiring Dr. Bleecher and taking patients and employees from the Plaintiff’s medical practice. Procedurally, in a related action, captioned Charles G. Bleecher v. Internal Medicine Associates, P.C. and Rajesh Raina, M.D., Index No. 616297/2017, by Order dated January 4, 2023 (Garguilo, J.), this Court granted Dr. Bleecher’s motion for partial summary judgment on the ground that the contract was unenforceable and without effect after the Defendants in that action refused to pay him overtime pursuant to the employment agreement. By Order dated May 22, 2023 (Garguilo, J.), the Court granted the Plaintiff’s request for certain discovery, directed the parties to provide documents they intend to rely upon at trial, denied Plaintiff’s motion seeking an order to preclude the Defendants from offering evidence of mitigation of damages or the Plaintiff’s subsequent employment, denied the Defendants’ motion to vacate the note of issue, denied the Defendants’ motion to reargue the prior order dated January 4, 2023 (Garguilo, J.), granted the Plaintiff’s motion to voluntarily discontinue certain causes of action without prejudice, and denied the Defendants’ motion to discontinue with prejudice. The Defendants in the instant action now move for summary judgment dismissing the instant action. The Plaintiff cross-moves to stay this action pending the Court’s resolution of IMA’s motion for leave to reargue the Court’s January 4, 2023 Order in the prior action, or, in the alternative, pending the appeal of such order that is before the Supreme Court, Appellate Division of the Second Department. In support of the motion, the Defendants submit the personal affidavit of Dr. Charles Bleecher, who avers that he was employed as a physician with the Plaintiff between August 2015 and June 18, 2017 in the office located at 243 Boyle Road in Selden, New York. Dr. Bleecher states that he was later employed as a physician with Defendant Harbor View between July 1, 2017 and December 31, 2020. During that time, Dr. Bleecher denies the Plaintiff’s allegations that he solicited patients or that he solicited the Plaintiff’s staff members to join Harbor View. In addition, he states that he did not market himself as a direct provider of medical services with an office located within a five-mile radius of the Plaintiff’s Selden Office. The Defendants contend that they were aware of Dr. Bleecher’s employment contract and the restrictive covenants. They state that Dr. Bleecher was placed in an office outside the 5-mile radius and no efforts were made to recruit the Plaintiff’s staff or solicit patients. The Defendants further argue that the Plaintiff should be collaterally estopped from relitigating the issue of whether the Employment Agreement was valid after this Court determined that it was not in the Bleecher action and the Court’s determination necessarily affects the instant action. The Defendants rely upon, inter alia, Lozada v. GBE Contr. Corp., 295 AD2d 482, 483, 744 NYS2d 464 [2d Dept 2002] and Ryan v. New York Tel. Co., 62 NY2d 494, 500, 478 NYS2d 823 [1984], which held that collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same. The Defendants also contend that the Plaintiff had a full and fair opportunity to litigate the enforceability of the Restrictive Covenants in the Bleecher Litigation and lost. The Defendants also cite Moulton Paving, LLC v. Town of Poughkeepsie, 98 AD3d 1009, 1012, 950 NYS2d 762 [2d Dept 2012], which held, without the element of an existing contract, the cause of action alleging…tortious interference with contract cannot stand. In any event, the Defendants argue that even if the Restrictive Covenants were enforceable, the tortious interference with contract claim is without merit since the Plaintiff cannot establish that the Defendants ever induced Dr. Bleecher to violate the Covenants since they went to great lengths to ensure compliance and there is no evidence that Dr. Bleecher violated the Covenants. In addition, the Defendants contend that the prima facie tort cause of action fails since there is no allegation of special damages. In opposition, the Plaintiff submits the personal affidavit of Rajesh Raina, M.D. (“Dr. Raina”), dated September 20, 2022, which was provided in the Bleecher matter. Dr, Raina states that Internal Medicine Associates, P.C. (“IMA”) has not breached the Employment Agreement and did not fail to pay Dr. Bleecher overtime compensation. Dr. Raina concedes that IMA’s assets were sold to Summit Health. The Plaintiff claims that the doctrine of collateral estoppel is not applicable to the erroneous order awarding summary adjudication to Dr. Bleecher in the prior action. The Plaintiff further states that party depositions and have not yet been conducted and a note of issue has not been filed, therefore, summary judgment is premature. The Plaintiff further seeks a stay of the instant matter until the reargument has been decided and appeal in the Bleecher matter has been heard. It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v. Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v. Citibank Corp., 100 NY2d 72, 760 NYS2d 397 [2003]). The doctrine of collateral estoppel applies “if the issue in the second action is identical to an issue which was raised, necessarily decided and material in the first action, and the plaintiff had a full and fair opportunity to litigate the issue in the earlier action” D’Arata v. New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664, 563 NYS2d 24 [1990]; Blue Sky, LLC v. Jerry’s Self Stor., LLC, 145 AD3d 945, 44 NYS3d 173 [2d Dept 2016], quoting Parker v. Blauvelt Volunteer Fire Co., 93 NY2d 343, 349, 690 NYS2d 478 [2d Dept 1999]; see City of New York v. Welsbach Elec. Corp., 9 NY3d 124, 128, 848 NYS2d 551 [2007]; Ryan v. New York Tel. Co., 62 NY2d 494, 500-501, 478 NYS2d 823 [1984]). The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action. (Kaufman v. Eli Lilly & Co., 65 NY2d 449, 456, 492 NYS2d 584 [1985]). Tortious interference requires unlawful means by the defendants or if lawful means are used the interference is by way of infliction of intentional harm without excuse or justification (NRT Metals, Inc. v. Laribee Wire, Inc., 102 AD2d 705, 476 NYS2d 335 [1st Dept 1984]; Alvord & Swift v. Stewart M. Muller Constr. Co., 46 NY2d 276, 282, 413 NYS2d 309 [1978]). Prima facie tort consists of these elements: the intentional infliction of harm causing special damages, without excuse or justification by an act or series of acts that would otherwise be lawful (Curiano v. Suozzi, 63 NY2d 113, 117, 480 NYS2d 466 [1984]). There is no recovery in prima facie tort unless malevolence is the sole motive for a defendant’s otherwise lawful act (Smith v. Meridian Tech., Inc., 86 AD3d 557, 559, 927 NYS2d 141 [2d Dept 2011], quoting Burns Jackson Miller Summit & Spitzer v. Lindner, 59 NY2d 314, 333, 464 NYS2d 712 [1983], quoting American Bank & Trust Co. v. Federal Reserve Bank of Atlanta, 256 US 350, 358, 41 S Ct 499, 65 L Ed 983 [1921]). Here, the Defendants have demonstrated their prima facie entitlement to judgment as a matter of law by showing that the issue of a valid contract was necessarily decided in the first action and is decisive in the instant action thereby precluding the Plaintiff from re-litigating the same issue in this action. The Court further finds that the Plaintiff has failed to show that it did not have a full and fair opportunity to litigate the issue in the Bleecher matter. Moreover, the Court finds that there are no allegations in the complaint which demonstrate any malice or disinterested malevolence by the Defendants with regard to tortious interference, and the Plaintiff has failed to present any evidence on these elements. Moreover, the Plaintiff failed to present any evidentiary facts sufficient to create a triable issue as to its allegations of prima facie tort, especially any evidence of malice on the part of the Defendants or special damages. Therefore, the motion by the Defendants for summary judgment dismissing the complaint as asserted against them is granted. The Plaintiff’s cross motion is denied. The Court, in its discretion, declines to stay the instant action (see CPLR 2201; Pollak v. Long Island Lighting Co., 246 A.D. 765, 765, 283 N.Y.S. 913 [2nd Dept. 1936]). A denial for a stay will be set aside only for an abuse of discretion (Rye Psychiatric Hosp. Center, Inc. v. Doniger, 110 AD2d 695, 696, 488 NYS2d 41 [2d Dept 1985]). While the Plaintiff claims that the Court should wait to determine the instant motion to promote issues of comity, orderly procedure and judicial economy, the motion to reargue has already been denied and the interest of justice would not be served by a stay. Accordingly, it is ORDERED that the Defendants’ motion (Mot. Seq. 004) seeking summary judgment dismissing the action is granted; and it is further ORDERED that the Plaintiff’s motion (Mot. Seq. 005) seeking a stay of the action is denied. The foregoing constitutes the decision and ORDER of this Court. Dated: August 1, 2023
