EDEN v. ST LUKE ROOSEVELT HOSPITAL CENTER (2007)

Order, Supreme Court, New York County (Debra A. James, J.), entered October 19, 2005, which granted defendants' motion to dismiss the complaint for lack of subject matter jurisdiction and denied plaintiff's cross motion for leave to amend the complaint, and order, same court and Justice, entered December 7, 2005, which granted plaintiff's motion for reargument and, upon reargument, adhered to the prior determination, unanimously affirmed, with costs.

 Plaintiff was formerly employed by defendant hospital as an attending physician in its department of obstetrics and gynecology;  the three individual defendants were the other members of the hospital's maternal/fetal medicine group during the period of plaintiff's employment.   To the extent the complaint and proposed amended complaint assert claims based on the hospital's allegedly wrongful termination of plaintiff's employment and withdrawal of his staff privileges, the motion court correctly concluded that, whether such claims seek damages or reinstatement, it lacked subject matter jurisdiction to entertain them since they had not yet been reviewed by the Public Health Council under the grievance procedure provided by Public Health Law § 2801-b (see Indemini v. Beth Israel Med. Ctr., 4 N.Y.3d 63, 790 N.Y.S.2d 625, 823 N.E.2d 1271 [2005];  Gelbard v. Genesee Hosp., 87 N.Y.2d 691, 642 N.Y.S.2d 178, 664 N.E.2d 1240 [1996];  Moallem v. Jamaica Hosp., 264 A.D.2d 621, 694 N.Y.S.2d 653 [1999] ).   To the extent plaintiff's pleadings assert claims to recover unpaid compensation allegedly earned while he was actually employed by the hospital (i.e., prior to his termination), such claims, even if not subject to Public Health Council review, are, in both the original complaint and the proposed amended complaint, intermingled with the claims barred by Public Health Law § 2801-b rather than separately pleaded.   We decline to parse plaintiff's pleadings for the purpose of severing the cognizable claims, if any, from those that are premature.