Brook v. Zuckerman

2017 NY Slip Op 7682, 155 A.D.3d 415, 62 N.Y.S.3d 801

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 2, 2017
• Docket: 4878 652265/13
• Status: Published

Opinion

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered October 18, 2016, which, to the extent appealed from, granted defendants’ motion to dismiss the breach of fiduciary duty, tortious interference, defamation, and unfair competition causes of action, unanimously affirmed, without costs.

The court providently exercised its discretion in dismissing the above-cited claims on the grounds of another action pending between the same parties (CPLR 3211 [a] [4]; see Whitney v Whitney, 57 NY2d 731 [1982]). Both this action and a prior action commenced by plaintiffs in 2012 arose out of the same subject matter or series of alleged wrongs (see PK Rest., LLC v Lifshutz, 138 AD3d 434 [1st Dept 2016]), i.e., defendants’ response to a 2009 surgical incident involving plaintiff Adam Brook, M.D., including their peer review and internal investigation and their filing of an Adverse Action Report and maintenance of that report with the National Physicians Database. Both actions seek the same relief for the same alleged injuries.

While plaintiff Brook Cardiothoracic Surgery, L.L.C., and defendant George Keckeisen, M.D., are not parties to the 2012 action, there is still substantial identity of the parties in the two actions, which is sufficient (see id. at 436).

In any event, the defamation, unfair competition, and breach of fiduciary duty causes of action were dismissed in a decision in the 2012 action (see Brook v Peconic Bay Med. Ctr., 152 AD3d 436 [1st Dept 2017]), and their relitigation is precluded by the doctrine of res judicata.

Concur—Tom, J.P., Renwick, Maz-zarelli, Oing and Singh, JJ.