GLEN COVE ASSOCIATES v. NORTH SHORE UNIVERSITY HOSPITAL

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Supreme Court, Appellate Division, Second Department, New York.

GLEN COVE ASSOCIATES, L.P., et al., Appellants, v. NORTH SHORE UNIVERSITY HOSPITAL, et al., Respondents.

Decided: June 30, 1997

Before THOMPSON, J.P., and JOY, ALTMAN and FLORIO, JJ. Jeffrey Levitt, Amityville, for appellants. Winston & Strawn, New York City, (Anthony J. D'Auria, Anthony DiSarro, and Jonathan H. Lewis, of counsel), for respondents.

In an action, inter alia, to recover damages for violation of the Donnelly Act (General Business Law § 340, et seq.), the plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Nassau County (McCaffrey, J.), entered July 15, 1996, which granted the defendants' motion for summary judgment dismissing the complaint, denied the plaintiffs' cross motion for partial summary judgment dismissing certain affirmative defenses, and dismissed the complaint.

ORDERED that the order and judgment is affirmed, with costs.

 The plaintiffs, who are two radiologists and their Magnetic Resonance Imaging (hereinafter MRI) facility, claim that the defendants, a hospital, its affiliate, and its Chief of Radiology, conspired to drive them out of business and create a monopoly of MRI services in the area, in violation of the Donnelly Act (General Business Law § 340, et seq.).   As the medical profession is exempt from the proscriptions of the Donnelly Act (see, People v. Roth, 52 N.Y.2d 440, 438 N.Y.S.2d 737, 420 N.E.2d 929), the Supreme Court properly granted summary judgment to the defendants dismissing that cause of action.

 Summary judgment was also properly granted dismissing the plaintiffs' causes of action alleging tortious interference with existing and prospective contractual relations.   As to the former, the plaintiffs failed to demonstrate the existence of any contract with a third party (see, Durante Bros. Constr. Corp. v. College Point Sports Assn., 207 A.D.2d 379, 380, 615 N.Y.S.2d 455;  Stratford Materials Corp. v. Jones, 118 A.D.2d 559, 560, 499 N.Y.S.2d 172).   They also failed to submit evidence sufficient to raise a question of fact as to whether the defendants acted with the sole purpose of harming the plaintiffs or engaged in any improper or unlawful conduct, a necessary element of a cause of action alleging interference with prospective contractual relations (see, Nassau Diagnostic Imaging & Radiation Oncology Assocs. v. Winthrop-Univ. Hosp., 197 A.D.2d 563, 564, 602 N.Y.S.2d 650).

The plaintiffs' remaining contentions regarding their other causes of action are without merit.

MEMORANDUM BY THE COURT.

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