INDEMINI v. BETH ISRAEL MEDICAL CENTER (2003)

 Order, Supreme Court, New York County (Martin Schoenfeld, J.), entered August 2, 2002, which granted defendant Beth Israel Medical Center's motion to dismiss the complaint on the ground that the court lacked subject matter jurisdiction over the action, unanimously affirmed, without costs.

 Plaintiff's claim arises out of the termination of her employment as a physician in defendant hospital's residency program in Emergency Medicine.   Thus, judicial review is available only by way of an action for an injunction pursuant to Public Health Law § 2801-c following completion of the investigation of the Public Health Council pursuant to Public Health Law § 2801-b (Gelbard v. Genesee Hosp., 87 N.Y.2d 691, 696, 642 N.Y.S.2d 178, 664 N.E.2d 1240).  “The statutory requirement of threshold PHC review is too important to be circumvented by artful pleading” (id. at 697, 642 N.Y.S.2d 178, 664 N.E.2d 1240), and the statutory mandate “cannot be avoided ‘simply by asserting a breach of contract claim,’ or prima facie tort and defamation claims” (Solomon v. Beth Israel Med. Ctr., 248 A.D.2d 118, 669 N.Y.S.2d 807, lv. dismissed in part and denied in part 92 N.Y.2d 874, 677 N.Y.S.2d 777, 700 N.E.2d 316, quoting Gelbard, 87 N.Y.2d at 697, 642 N.Y.S.2d 178, 664 N.E.2d 1240).   Distinctions based on the cause of action asserted have been discarded in favor of “ ‘a “bright line” rule that, if a physician seeks reinstatement of hospital privileges, the court is without jurisdiction to consider that issue until the Public Health Council reviews the matter and makes its findings, which-because of its special expertise-constitute prima facie evidence of the facts found therein in any subsequent action’ ” (Gelbard, 87 N.Y.2d at 695, 642 N.Y.S.2d 178, 664 N.E.2d 1240, quoting 211 A.D.2d 159, 165, 626 N.Y.S.2d 894).   The reasons given for plaintiff's termination-including performance below the level appropriate for a second-year resident, clinical mistakes, poor judgment and interpersonal problems with staff and patients-involve precisely the physician competency issues warranting review by the Public Health Council as a means of promoting conciliation (see Matter of Cohoes Mem. Hosp. v. Dept. of Health of State of New York, 48 N.Y.2d 583, 589, 424 N.Y.S.2d 110, 399 N.E.2d 1132) and “ avoiding costly and protracted litigation” (Gelbard, 87 N.Y.2d at 697, 642 N.Y.S.2d 178, 664 N.E.2d 1240).