SCHAEFER v. BROOKDALE UNIVERSITY HOSPITAL AND MEDICAL CENTER

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

Harold C. SCHAEFER, etc., appellant, v. BROOKDALE UNIVERSITY HOSPITAL AND MEDICAL CENTER, et al., respondents.

Decided: October 27, 2009

MARK C. DILLON, J.P., ANITA R. FLORIO, ARIEL E. BELEN, and SHERI S. ROMAN, JJ. Costantino Fragale, Eastchester, N.Y., for appellant. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Ricki E. Roer and Celena R. Mayo of counsel), for respondents.

In an action, inter alia, to recover damages for breach of contract and defamation, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Kings County (Demarest, J.), dated March 3, 2008, as granted those branches of the defendants' motion which were for summary judgment dismissing the causes of action alleging breach of contract and defamation.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The defendants established their prima facie entitlement to judgment as a matter of law dismissing the plaintiff's breach of contract cause of action.   The breach of contract cause of action is primarily based upon the plaintiff's allegedly wrongful termination from the defendant Brookdale University Hospital and Medical Center's urology residency program.   Therefore, his proper recourse was the grievance process provided by Public Health Law § 2801-b, “which cannot be avoided simply by asserting a breach of contract claim” (Indemini v. Beth Israel Med. Ctr., 4 N.Y.3d 63, 68-69, 790 N.Y.S.2d 625, 823 N.E.2d 1271 [internal quotation marks omitted];  see Giordano v. Victory Mem. Hosp., 273 A.D.2d 353, 354, 711 N.Y.S.2d 730;  Falk v. Anesthesia Assoc. of Jamaica, 228 A.D.2d 326, 330, 644 N.Y.S.2d 237;  Saha v. Record, 177 A.D.2d 763, 765, 575 N.Y.S.2d 986).   In opposition to the defendants' prima facie showing, the plaintiff failed to raise a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572).

The defendants also established their prima facie entitlement to judgment as a matter of law dismissing the plaintiff's second cause of action alleging defamation by demonstrating that the challenged statements were substantially true (see Cooper v. Hodge, 28 A.D.3d 1149, 1150, 814 N.Y.S.2d 447;  Yan v. Potter, 2 A.D.3d 842, 843, 769 N.Y.S.2d 379).   Moreover, the defendants established that the alleged defamatory statements were protected by a qualified privilege (see Cooper v. Hodge, 28 A.D.3d at 1150, 814 N.Y.S.2d 447;  Roth v. Beth Israel Med. Ctr., 180 A.D.2d 434, 435, 579 N.Y.S.2d 373;  Meller v. Tancer, 174 A.D.2d 374, 571 N.Y.S.2d 214).   In opposition, the plaintiff failed to raise a triable issue of fact.

The plaintiff's remaining contentions either are without merit or need not be reached in light of our determination.

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