New York State Court of Claims

New York State Court of Claims

VRIESENDORP v. STATE OF NEW YORK, #2008-018-638, Claim No. 109507, Motion Nos. M-74963, M-74974


Claimant and Defendant each brought motions for Summary Judgment based upon CPLR 3212 asserting no material facts exist and this matter may be decided as a matter of law. The Court finds that Claimant voluntarily, albeit with limited options, resigned his position with the State. Given his resignation, Claimant’s causes of action for breach of contract, wrongful termination, and breach of the covenant of good faith and fair dealing must fail. Defendant’s motion is GRANTED and Claimant’s motion is hereby DENIED.

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
M-74963, M-74974
Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
Attorney General of the State of New York
By: Patricia M. Bordonaro, EsquireAssistant Attorney General
Third-party defendant’s attorney:

Signature date:
October 8, 2008

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant brings an action against the State of New York for breach of contract, breach of

the implied covenant of good faith and fair dealing, and for abusive/wrongful discharge. After lengthy pre-trial proceedings, both the Claimant and Defendant bring motions for summary judgment pursuant to CPLR 3212 asserting that no material issues of fact exist and the claim may be decided as a matter of law. In essence, the majority of facts are not in dispute as evidenced by the submissions of the parties; although, clearly the parties’ interpretation of the facts is highly contested. Yet, where only one conclusion may be drawn from the established facts, the claim may be decided as a matter of law (see Culkin v Parks & Recreation Dept. of City of Syracuse, 168 AD2d 912).

It is undisputed that in July of 2003, Claimant, a medical doctor licensed in New York, Wisconsin, Massachusetts, Maryland, and Montana, contacted Dr. Chung T. Chung, Chair of the Department of Radiation-Oncology at the State University of New York Upstate Medical University (SUNYUMU) about potential employment. Claimant was living in Wisconsin at the time of his initial contact with Dr. Chung. After a few e-mail communications with Dr. Chung, Claimant met with him in October 2003, and again in November or December 2003. On November 5, 2003, Dr. Chung forwarded a letter to Claimant on SUNYUMU stationary;[1] the letter offered Claimant a faculty appointment with SUNYUMU as Assistant Professor. It was noted that his promotion to Professor was anticipated following approval by the College of Medicine Faculty Appointments and Promotions Committee. The letter says that once Claimant signed the letter reflecting his approval of the terms of the offer, Dr. Chung would forward his recommendation to the Dean of the College of Medicine, William J. Williams, M.D., and the President of SUNYUMU, Dr. Gregory Eastwood, would actually make the official offer of employment to Claimant.

As a condition of his position as Assistant Professor with SUNYUMU, Claimant was required to work at a satellite office(s) in addition to providing clinical care at the hospital. Other terms included:
a.) You will be an employee of the Research Foundation of the State University of New York. Your official payroll title will be Clinical Investigator. You will be granted a concurrent unpaid faculty appointment with the State University of New York at the rank of Assistant Professor as described above.

b.) You will have all rights and privileges of a member of the Faculty of the College of Medicine at Upstate Medical University as defined by the policies and articles of governance of such. Please refer to our website at for more information.

c.) You will have all rights and privileges of membership in the Department of Radiation Oncology Medical Service Group, University Hill Radiation Oncology, LLP.

d.) Your annual salary from all sources will be $220,000 (plus benefits) for the first year. Your starting annual base salary rate of $20,000 will be paid by the Research Foundation of the State of New York, and $200,000 will be paid from the Department Medical Service Group fund. Salary increases and/or bonuses may be granted annually following yearly review, dependent upon the financial status of the department. Your fringe benefit package includes an approximate 15% contribution to a retirement plan as well as medical, life, and malpractice insurance coverage.

e.) This is a temporary appointment subject to he availability of funds. This appointment does not carry credit toward continuing appointment nor can
a continuing appointment be considered during your service in this position.

f.) The effective date of this appointment is [March 1, 2004] or a date to be mutually agreed upon, contingent upon your satisfactory completion of employment physical examination and evidence of a valid New York State medical license, and subject to your arrival prior to or on that date to complete necessary employment paperwork with the offices of Human Resources and Payroll.

g.) Office space will be provided and you will have use of all department facilities.

h.) You will be reimbursed up to $4,000 for receipted moving expenses, including your personal travel costs.

i.) An Academic Enrichment Fund allowance will be provided for your use; at the present time this allowance amounts to approximately $12,000 annually, and can be used for books, journals, society dues, professional license fees, computers, and professional and educational travel.

j.) If in the future you decide to terminate your position in this department, you agree to provide the Department Chair with notice of intent to terminate, in writing, at least six months prior to the anticipated date of your termination. Similarly, if our department should find it necessary to terminate your services on our faculty, the Chair will notify you of such intent, in writing, at least six months prior to the effective date of such termination.

k.) At the time of your employment you will be required to sign a Restrictive Covenant, which will prohibit the competitive practice of radiation oncology in areas served by the Department of Radiation Oncology for a period of two years following termination of employment. By means of your signature below, you agree to the requirement to sign such a document.

Additionally, an “Agreement of Academic Expectations” was included setting forth the requirements of research, teaching, clinical care, mentoring, consultation, service, collegiality, and evaluation and directed that as an Assistant Professor, Claimant must “[f]acilitate the goals of SUNY Upstate Medical University at all times.” Claimant accepted the terms of the offer and the academic expectations by signing both documents on November 13, 2003. He also made two follow-up visits to Syracuse in December 2003 and January 2004. In December 2003, Claimant spent time in Syracuse looking for a home. He also signed an application on December 5, 2003, for Medical Staff Appointment and Clinical Privileges[2] with SUNYUMU, University Hospital (hereinafter University Hospital). Claimant testified in his deposition that he signed the application and Dr. Chung’s secretary, Maureen Knopp, completed the application by typing the requested information. In January, Claimant filled out many forms to facilitate insurance billing for patients.

Thereafter, by letter dated February 13, 2004, Dr. Gregory Eastwood, President of SUNYUMU, offered Claimant the Assistant Professor faculty position in the Department of Radiation-Oncology effective March 1, 2004.[3] The letter indicated that for payroll purposes his title would be Clinical Investigator and his salary would be paid - $20,000, funded by the Research Foundation Grant 1029170-31290-3, and the balance, $200,000, from the Department of Radiation-Oncology Medical Service Group Fund. The portion to be paid from the Medical Service Group Fund was noted as not the responsibility or obligation of SUNYUMU. Claimant was reminded that this was a temporary appointment subject to the availability of funds, and the appointment did not provide credit toward continuing appointment nor would continuing appointment be considered while Claimant held this specific position. The policies of the Board of Trustees of SUNY, Article 11 under “Appointment of Employees” Title F, defines a temporary appointment as an appointment which “may be terminated at any time.”[4] Claimant signed this letter in acceptance on March 1, 2004, when he actually began his position.

When Claimant applied for University Hospital privileges in December 2003, he was advised by Dr. Chung’s secretary, Maureen Knopp, which was confirmed by Dr. Chung, that the process should take approximately three months and should be completed or almost complete by the time he was expected to begin work on March 1, 2004. Typically, consideration for a position on the faculty progresses simultaneously with an application for privileges at the hospital. As part of the process, Claimant was contacted and scheduled an interview with a Dr. Weiner in pediatrics for the last week in February 2004.

Claimant did not have privileges for clinical practice at University Hospital at the time he began his position. He testified that he followed Dr. Hahn as he saw new patients in the clinic. Claimant was present for morning conferences and gynecologic tumor boards, pediatric tumor boards, solids tumor boards, and hematology tumor boards. He participated in department meetings. He did some teaching of the residents and also had discussions with two radiation biologists regarding work they were doing and how Claimant might assist. Although Claimant could advise on patient care, he could not treat patients directly without having credentialing at the hospital. Claimant was paid during this time according to the terms of his agreement by the Research Foundation and also by the Practice Group. No checks came directly from SUNYUMU.

After beginning his position, he spoke with Patricia Numann, M.D., the Medical Director of University Hospital who oversees the activities of the medical staff office particularly in areas of quality, civility, and competence of the physicians within the hospital. Dr. Numann supervises the employees in the medical staff office who conduct the credentialing process for the hospital. Mary Ann Merklein is the Director of Medical Staff Services and is involved directly in the credentialing process. She also attends all of the Credentialing Committee and the Medical Executive Committee meetings. Dr. Numann is also a member of the Medical Executive Committee of the hospital. This committee consists of eight elected official members and a couple ex-officio members who represent the medical staff of the hospital. In relation to the credentialing process for the hospital, this committee appoints the medical staff. The Credentialing Committee gathers information about a physician and then after meeting, makes a report recommending that privileges be granted or denied to the Medical Executive Committee.

Dr. Numann explained the process of obtaining hospital privileges. To apply for privileges at the hospital, a doctor must first be a faculty member with SUNYUMU. Contact must first be made to the Chief of the University Department in which a position is sought. The Medical Staff Office would then, upon the direction of the Chair of the Department, send out an application for privileges form. Once the application is completed, the Medical Staff Office does primary verification of the information the applicant provides. This means that the information sought must come from the specific people from whom it was sought, and the feedback needs to be responsive to the request. Once the requested verification is obtained, the Credentialing Committee will meet and review the information and decide whether or not privileges should be granted. A report of the Credentialing Committee’s decision is then forwarded to the Executive Medical Committee which will or will not offer the physician an appointment. It is actually the Executive Medical Committee which grants or denies privileges. If granted, a meeting is scheduled for the physician’s orientation to review the rules of the hospital.

Dr. Numann recalled that regarding Claimant’s application she had spoken a number of times with Mary Ann Merklein, Director of Medical Staff Services, about the difficulty they were encountering obtaining the information requested from Claimant’s prior employers. Efforts were made to get the information in writing and by telephone without success. The Chair of the Credentialing Committee, Dr. Robert Carhart, spoke with Dr. Numann about what they should do given the dearth of pertinent feedback. Dr. Numann advised Dr. Carhart that given their diligent attempts to get the information relating to Claimant’s competence, character, and performance, the credentialing process could not go forward and privileges could not be granted.

Claimant spoke with Dr. Chung at his office on March 10, 2004. At that time, Dr. Chung told Claimant that he would not be credentialed and he had until Monday to decide whether to withdraw his application. He advised Claimant that if his credentialing was denied a report would have to be made to the New York State Office of Professional Medical Conduct (hereinafter OPMC); if he withdrew his application it would not go the Credentialing Board or to the State. Typically, at that time, the Credentialing Committee met the second Monday of every month and the Medical Executive Committee met the first Tuesday of every month. Whatever happened at the Credentialing Committee meeting was on the agenda for the following Medical Executive Committee. The Credentialing Committee met late in March 2004, on March 29, regarding Claimant’s application. In this case, the next scheduled Medical Executive Committee meeting was April 6, 2004.

On March 10 or 11, 2004, a Friday evening, Claimant spoke with Dr. Numann to inquire what additional credentialing information was needed. Claimant testified that she told him that he had all the time he needed to get additional information, but that if the Credentialing Committee did not get satisfactory information from the requested sources, his application would be denied and a report would have to be made to the State.

Thereafter, Claimant tried to obtain additional information for his credentialing but no additional information was received. At the March 29, 2004 meeting, the Credentialing Committee decided that the issue of Claimant’s privileges would be sent on to the Medical Executive Committee without a recommendation as to credentialing. In early April, Claimant spoke with his attorney from Wisconsin, Jeff Scott Olson. On April 5, 2004, Mr. Olson spoke directly with Ms. Merklein and inquired about whether the Medical Executive Committee’s meeting could be rescheduled. He was told that the meeting could not be rescheduled. Ms. Merklein advised Mr. Olson that he could fax additional information from one of Claimant’s prior employers, but that the Credentialing Committee had already met and made a decision. Mr. Olson did fax a letter from one of Claimant’s prior employers to Ms. Merklein, and in the cover letter to her, Mr. Olson indicated that Claimant would accept probationary credentialing unless the Committee would defer making a decision so that additional data could be provided. He also inquired as to whether Claimant could still withdraw his application to avoid a negative decision. Mr. Olson also spoke with Molly Zimmermann, Associate Counsel with SUNYUMU, and Dr. Chung and then he advised Claimant to withdraw his application for privileges. Claimant hand-wrote a letter to the Credentialing Committee withdrawing his request for hospital privileges on April 5, 2004, and faxed it to Mary Ann Merklein the same day. Claimant testified that Dr. Chung telephoned Claimant in his office during the morning of April 6, 2004, and told him that he had to resign his positions with the Research Foundation and the Medical Services Group within one hour, or the Medical Executive Committee meeting later that day, would not accept the withdrawal of his application for privileges. Dr. Chung spoke with Mary Ellen Kenny from the Human Resources Department of the hospital before talking with Claimant, and it was Dr. Chung’s understanding that if Claimant had withdrawn his application for privileges, his employment with the Research Foundation and position with SUNYUMU must be terminated.[5] Dr. Chung acknowledged that he may have told Claimant that if he was withdrawing this application for privileges, he also had to resign his positions with SUNYUMU and the Research Foundation. It was Dr. Chung’s understanding that if Claimant was withdrawing his application for privileges, it was his intention to also resign his faculty and clinical positions as the privileges were integral to performing these positions.[6] Claimant hand-delivered a letter to Dr. Chung, dated April 6, 2004, resigning his faculty position as well as his position with the Research Foundation. Dr. Chung forwarded a letter to Claimant of the same date indicating that Claimant’s resignation was accepted and it was being considered a resignation from the Department of Radiation-Oncology Medical Service Group as well.

The decision as to whether a denial of privileges must be reported to the OPMC is jointly made by the CEO of the hospital, the Director of Medical Staff Office, Dr. Numann and counsel for the hospital. Both Dr. Numann, Molly Zimmermann, and Mary Ann Merklein indicated that if Claimant’s privileges were denied because sufficient information could not be obtained regarding Claimant’s character, competence, and performance from prior employers and associations, at the least, inquiry would have to be made to OPMC for advisement on whether a report must be filed.
Defendant’s motion will be addressed first. Defendant seeks dismissal of the claim on a number of grounds. First Defendant argues that this Court lacks subject matter jurisdiction over the claim, as the claim primarily seeks review of Claimant’s application for privileges and Public Health Law §§ 2801-b and 2801-c provide the exclusive remedy for a physician to challenge a hospital’s actions in relation to an application for hospital privileges. Defendant next argues that Claimant was never employed by the State of New York as he had an unpaid faculty position with SUNYUMU, and was a paid employee of two separate non-State entities, the Research Foundation and the Medical Service Group. Alternatively, Defendant argues that even if Claimant was an employee of the State, his employment was at-will employment terminable at any time for any reason and he is not entitled to any compensation. Finally, Defendant’s last argument is that Claimant was not terminated, but voluntarily resigned.

As a preliminary matter the Court will address “Exhibit U” which Defendant presented

in camera
in support of its motion. Exhibit U purportedly contains all of the documents and the determination by the Public Health Council in a proceeding pursuant to Public Health Law

§ 2801-b. Claimant argues, in opposition, that those documents are privileged and not subject to disclosure[7] and seeks sanctions against the Assistant Attorney General for even presenting the exhibit. Public Health Law § 2801-b, which authorizes a physician who feels aggrieved by an improper denial of staff membership or privileges in a hospital to file a verified complaint with the Public Health Council, also provides that information received by the Public Health Council in investigating the complaint “shall be kept confidential” and the records from any proceedings “shall not be admissible as evidence in any other action of any kind in any court or before any other tribunal, board, agency or person.” (Public Health Law §2801-b[3]). The statute clearly requires the information received by the Public Health Council through its investigation to be kept confidential. Thus, the documents or information obtained by the Council and its procedures and deliberations thereon are confidential (Public Health Law § 2801-b[3]; Matter of Cohoes Mem. Hosp. v Department of Health of State of N.Y., 48 NY2d 583). The Court has not considered Exhibit U.
Exclusivity of Statutory Grievance Process
There is no common law cause of action for a denial of staff privileges by a private hospital (Moallem v Jamaica Hosp., 264 AD2d 621; Leider v Beth Israel Hosp. Assn., 11 NY2d 205). Public Health Law §§ 2801-b and 2801-c were enacted to provide some redress from a denial of privileges and establishes a two-tiered system for review of a hospital’s action on a physician’s hospital privileges. First, the physician may file a complaint with the Public Health Council to investigate the circumstances of the hospital’s actions. The Public Health Council will then make a determination whether cause exists to credit the allegations in the complaint; and if so, the Council will advise the hospital to review its actions regarding the physician’s privileges (Public Health Law § 2801-b). Thereafter the Supreme Court may enjoin violations or threatened violations of any provision of Article 28 of the Public Health Law (Public Health Law § 2801-c).

An aggrieved physician seeking court intervention to direct a hospital to grant or reinstate hospital privileges must first seek review by the Public Health Council (Gelbard v Genesee Hospital, 87 NY2d 691). Only after such review may a physician “bring a [PHL] section 2801-c injunction action or any other valid claim.” (Id at 698). In an injunction action brought in Supreme Court, any findings made by the Public Health Council shall be prima facie evidence of the fact or facts found therein (Public Health Law § 2801-c).

Here, we note initially that Claimant’s privileges were never actually denied as he withdrew his application, but Claimant did bring a complaint before the Public Health Council which was investigated and reviewed in accordance with Public Health Law § 2801-b. The statutory requirement of threshold Public Health Council review has been met (Id.). Claimant does not, nor could he in this Court, seek an order directing the hospital to grant privileges. Rather, Claimant seeks damages for a separate breach of contract, breach of the covenant of good faith and fair dealing, and wrongful termination separate from the likely denial of his hospital privileges (cf, Moallem v Jamaica Hosp., 264 AD2d 621, 622). The Court has jurisdiction to hear such claims.

Claimant bases his allegations in the claim for breach of contract on the Medical Staff By-Laws of the hospital and on the letter offers of employment dated November 5, 2003, from Dr. Chung T. Chung, and February 13, 2004, from Dr. Gregory L. Eastwood. Claimant makes reference in the claim to a breach of an unspecified section of the Medical Staff By-Laws. However, no breach of contract action lies for breach of Medical Staff By-Laws unless the By-Laws specifically authorize such action (Mason v Central Suffolk Hosp., 3 NY3d 343). There is no such authorization found in the By-Laws of SUNYUMU, University Hospital.[8] To the extent that the claim seeks damages for breach of the provisions of the Medical Staff By-Laws, it is not viable.
The State as an Employer
Defendant argues that Claimant was not an employee of the State of New York. Pursuant to the offers of employment, Claimant was offered an unpaid, temporary, faculty appointment with the SUNYUMU as Assistant Professor in the Department of Radiation-Oncology. His salary was paid partially by the Research Foundation of the State of New York and partially by the Department of Medical Services Group Fund. Claimant’s W-2 Wage and Tax Statements[9] for 2004 support the payment of income from these two sources.

The issue of whether an employer-employee relationship exists is factually based and goes beyond payment of compensation. Somewhat dependent upon the context within which the issue arises, the focus is on the specific nature of the relationship. Certain key factors distill whether the context is the Labor Law, Unemployment Insurance Law, Workers’ Compensation Law, Human Rights Law, or respondeat superior. Factors such as (1) selection and engagement of the servant (2) the payment of salary, wages or fringe benefits, (i.e., was the individual on the employer’s payroll?), (3) the right to dismissal or discharge, (4) control over the servant’s work, including the nature of the work, schedule, and furnishing of equipment have been found relevant in determining whether an employer/employee relationship exists (see and compare State Div. of Human Rights v Board Coop. Educ. Servs., 98 AD2d 958; State Div. of Human Rights v GTE Corp., 109 AD2d 1082 [within context of Executive Law]; Theodoreu v Chester Fire Dist., 12 AD3d 499; Matter of Semus v University of Rochester, 272 AD2d 836; Matter of Tully v Live Right Realty Corp., 36 AD3d 1108 [Workers’ Compensation Law]; Bynog v Cipriani Group, Inc., 1 NY3d 193; Stringer v Musacchia, 46 AD3d 1274 [Labor Law]; Matter of Charles A. Field Delivery Serv., 66 NY2d 516 [Unemployment Insurance Law]; Theodoreu v Chester Fire Dist., 12 Ad3d 499 [Volunteer Firefighters’ Benefit Law]).

No factor alone is determinative, however, control over the servant and the work being done seem to be the most critical. A few cases provide particular guidance. In State Div. of Human Rights v GTE Corp., 109 AD2d 1082, the petitioner applied for employment as a keypunch operator with GTE and was interviewed by GTE employees. The petitioner was accepted for employment by the GTE employees. Petitioner was on the payroll of an employment agency. GTE, however, set petitioner’s pay rate and determined her hours of employment. The petitioner had no contact with the employment agency. The Court found that despite the fact the petitioner was not on the GTE payroll, GTE was her employer as GTE exercised the power and control over her job duties and power of dismissal. Similarly, under facts very similar to those present here, in Matter of Palmer v State Univ. of N.Y. Upstate Med. Univ., 14 AD3d 737, 738, lv denied 5 NY3d 717, an orthopedic hand surgeon provided “volunteer” services as a clinical professor at SUNYUMU while he was paid by the Research Foundation which received its funds from the Orthopedic Medical Services Group, an orthopedic practice group created by the university in which Claimant maintained a private practice. The members of the practice group served as the University’s Department of Orthopedic Surgery faculty. Since the university created this “web of relationships to enable it to receive the benefit of [the physician’s] services” the Court found “substantial evidence” to support the Workers’ Compensation Board’s findings that the physician was a dual employee of the both the university and the foundation (Matter of Palmer v State Univ. of N.Y. Upstate Med. Univ., 14 AD3d 737, 738).

In this case, the facts are not in dispute and the intricate relationship between the SUNYUMU, University Hospital, the Research Foundation, and the Medical Service Group is evident from the testimony of Dr. Chung, and the Defendant’s other submissions.1[0] The purpose of the Research Foundation is to develop and increase the facilities of SUNY.1[1] The purpose of the Medical Service Group is to provide financial support for the development and growth of the clinical departments, expenses of practice, and academic mission of SUNYUMU.1[2] SUNYUMU is required by statute and regulations to plan for the management of clinical practice income, which includes the formation of the Medical Service Group by each school of medicine, along university guidelines.1[3] The dean of SUNYUMU must approve all new positions in the Department of Radiation-Oncology. All physicians in the Department of Radiation-Oncology are members of the Medical Service Group and all members of the Medical Service Group are part of the Department. To be in the Medical Service Group, the physician must first have a faculty appointment. Financing for the Department of Radiation-Oncology at SUNYUMU comes from the State and the Medical Service Group. The money for the Research Foundation comes from grants and the Medical Service Group. Here, SUNYUMU through Dr. Chung T. Chung, as Chair of the Department of Radiation-Oncology at SUNYUMU and Dr. Gregory Eastwood, as President of SUNYUMU, made the offers of employment to Claimant. In offering Claimant the positions with the Research Foundation and the Medical Service Group, Dr. Chung did not seek or need the approval of anyone else, although it was Dr. Eastwood’s letter which actually extended the offer for a faculty appointment with SUNYUMU. Dr. Chung and the dean of SUNYUMU determine salary and approve all salary increases. Dr. Chung had the power to terminate Claimant. Although it was clearly delineated by the letter offers that the payment of Claimant’s salary was not the responsibility of SUNYUMU, Claimant’s job duties and responsibilities for all the positions were presented by SUNYUMU employees. Even more notable is that once Claimant submitted the resignation of his faculty position and the position with the Research Foundation, Dr. Chung considered it to also be a resignation from the Medical Service Group. As Dr. Chung testified to the interrelationship between credentialing, the faculty position, and the Medical Service Group position he agreed “[i]t is all three or nothing.”1[4] The positions with the Research Foundation and the Medical Service Group are contingent on maintaining a faculty position at SUNYUMU.

Although, the Research Foundation is not an arm of the State (see Turner v State of New York, 49 AD2d 269 vacated by 52 AD2d 671) given the undisputed circumstances here, there is only one conclusion that may be drawn and the Court finds that Claimant was an employee of the State as well as the Research Foundation and the Radiation-Oncology Medical Service Group.
At-Will Employment
The law is very clear that absent an agreement establishing employment for a fixed duration, an employment relationship is a hiring at will, which may be terminated at any time for any reason (Sabetay v Sterling Drug, Inc., 69 NY2d 329, 333; Lobosco v New York Tel. Co./NYNEX, 96 NY2d 312, 316; Horn v New York Times, 100 NY2d 85, 90; Martin v New York Life Ins. Co., 148 NY 117). Defendant argues that despite the six-month notice of termination clause, which referenced only termination as a faculty member, there was no fixed duration for termination and no limit on either party’s unfettered right to end the relationship. The notice provision, according to Defendant, only established the effective date of the termination.

Defendant cites in support of its position Zolotar v New York Life Ins. Co., 172 AD2d 27. However, this Court finds that the facts of Zolotar set it apart from the circumstances here. Mr. Zolotar entered into a contract of employment which specified that either party “may, with or without cause, terminate this contract upon written notice, said termination to become effective thirty days after the day on which such notice is dated.” (Zolotar, 172 AD2d at 28). The Court refers to the contract as an at-will relationship because there is no limitation of any kind in duration or purpose to the unfettered right to terminate employment. The critical difference here is that the employer gave the employee a letter terminating their relationship without cause effective 30 days thereafter, in full compliance with the terms of the contract and thus since the terms of the contract were met, the employer had the full and unfettered right to terminate the employee's services without cause (see also Gazzola-Kraenzlin v Westchester Med. Group, P.C., 10 AD3d 700; and Lynch v Upper Crust, 294 AD2d 237). Although reference to such a case as “at-will” muddies the linguistic waters when other courts refer to at-will employment as “permit[ing] either party to terminate the employment relation without advance notice... (Kotick v Desai, 123 AD2d 744, 745 [emphasis supplied]; see also Evans v Ithaca Urban Renewal Agency, 205 AD2d 844, 846). In effect, when the terms of the contract’s notice provisions have been met, the employment is at-will. Here, however, if Claimant was terminated, which will be addressed forthwith, he was entitled by the terms of the contract to six-months notice, which effectively restricted the time frame within which Defendant could terminate Claimant. Moreover, since the position as a faculty member along with the positions at the Research Foundation and the Medical Service Group were intricately connected, such that Claimant could not have been discharged from just his faculty position, and continued with his position with the Research Foundation or the Medical Service Group, the terms applied to all the positions.
Resignation or Termination
It is Defendant’s position that Claimant was never terminated, he resigned. This, at least on its face, is accurate based upon Claimant’s letters withdrawing his application for privileges dated April 5, 2004, and resigning from his faculty position and the Research Foundation by letter dated April 6, 2004.1[5]

However, it is Claimant’s position that the letters of resignation were not voluntary but were coerced and he was, in essence terminated. Claimant argues that the State, through Dr. Chung, improperly threatened that if he did not withdraw his application for medical staff privileges that his application would be denied and the denial would have to be reported to the OPMC. Since such a denial of privileges and a potential report to the State would likely negatively impact his medical career, he was left with no choice but to withdraw his application for privileges and resign his positions.

Although, normally, whether a resignation is voluntary or coerced would be a question of fact; here, the undisputed facts permit the Court to rule as a matter of law (see Matter of Manel v Mosca, 216 AD2d 468; Matter of Gilliam v New York City Dept. of Sanitation, 18 Misc 3d 1141[A]). The undisputed facts establish that Claimant applied for hospital privileges with University Hospital. The process which normally takes three months or more was begun in December. The hospital required primary verification from all sources to substantiate all aspects of the applicant’s education and experience. It is the statutory obligation of the hospital on an application for hospital privileges to make inquiry and seek verification of information relating to the applicant’s prior training, employment, association or professional privileges, or any actions which the applicant may have taken to avoid disciplinary action, any conviction of a crime, professional misconduct, or mental or physical impairment, incompetence, malpractice, or impairment of patient safety or welfare (Public Health Law § 2803-e [1] [a] and [b]). After months of trying by the Medical Staff Office sufficient information could not be obtained and, according to the undisputed testimony of Dr. Numann and Mary Ann Merklein, there was no indication that it was a matter of requiring more time: the information would not be forthcoming. The Credentialing Committee met and referred the matter to the Medical Executive Committee without making a recommendation to grant or deny privileges. It was clear from Dr. Numann’s testimony, and as a member of the Medical Executive Committee, that if the application information was not complete, privileges would not be granted. The Medical Executive Committee was required, if privileges were denied, to specify the reason for the denial, and based upon the reason set forth, it would then be determined whether a report was needed to be made to OPMC. If it was questionable, an inquiry would be made to OPMC as to whether a report was required. It is Claimant’s position that no report was required if the basis for the denial was an incomplete report, and Dr. Numann confirmed this and testified that she could not recall any other case where privileges were denied because of an incomplete application.

Public Health Law § 2803-e [1] [a] requires that “[h]ospitals and other facilities approved pursuant to this article shall make a report or cause a report to be made within thirty days of the occurrence of any of the following:...the denial of staff privileges to a physician if the reasons stated for such denial are related to alleged mental or physical impairment, incompetence, malpractice, misconduct or impairment of patient safety or welfare.” The policies of Upstate Medical Hospital relating to the reporting of an action affecting hospital privileges are consistent with the statute.1[6] From the testimony, it is clear that both Dr. Chung and Mary Ann Merklein were of the opinion that if Claimant’s application for privileges were denied, a report would have to be made. Dr. Numann and Molly Zimmermann, counsel for Upstate Medical University, were of the opinion that a report might have to be made and an inquiry would have to be made as to whether a report was required under these circumstances. Dr. Numann referred to such a situation as a “very odd and rare event.”1[7] Dr. Numann and Molly Zimmermann, along with the CEO of University Hospital, would have made the determination of whether a report to OPMC was required.

Coercion is defined as “[c]ompulsion; constraint; compelling by force or arms or threat (Black’s Law Dictionary, p. 258 [6th ed. 1990]). It can be physical or mental but it effectually deprives the individual of his or her free will to act (Id.). The Courts have consistently held that merely requiring a person to make an uncomfortable or unpleasant choice between two legal and viable positions is not coercive (see Matter of Cacchioli v Hoberman, 31 NY2d 287, 292, Jasen, J., concurring opinion; Matter of DeMarco v McLaughlin, 69 AD2d 882, affd 49 NY2d 941; Matter of Hopkins v Governale, 222 AD2d 435,436; Matter of Wolfe v Jurczynski, 241 AD2d 88, 90-91; Doyle v Trinity Church, 133 NY 372; Levitz v Robbins Music Corp., 6 AD2d 1027; but compare Rychlick v Coughlin, 99 AD2d 863; Matter of Willis v VonHolden, 67 AD2d 810). “[A] person’s resignation may not be considered to be obtained under duress unless the employer threatened to take action which it had no right to take.” (Matter of Cacchioli v Hoberman, 31 NY2d 287, 292, Jasen, J., concurring opinion; Matter of Hopkins v Governale, 222 AD2d 435,436; Wolfe v Jurczynski, 241 AD2d 88, 90-91). Here, Defendant had the obligation to inquire into Claimant’s education, employment, and association history for purposes of granting or denying hospital privileges. The hospital did not receive the information it required. Without the required information, if the Medical Executive Committee had proceeded to consider Claimant’s application, it, more than likely, would have been denied. This result would have been, at the very least, submitted to the OPMC for advisement as to whether a report should be made for the denial of privileges. Claimant, understandably, wanted to avoid a denial of privileges. The fact that the choice presented to Claimant was unpalatable does not equate with duress or coercion. It is worthy to note that Claimant was represented by counsel at the time.

Accordingly, under the circumstances presented here, based upon the undisputed facts, the Court does not find that Defendant terminated Claimant, but rather that Claimant voluntarily, albeit with limited options, resigned his position with the State. Given his resignation, Claimant’s causes of action for breach of contract, wrongful termination, and breach of the covenant of good faith and fair dealing must fail. Defendant’s motion is GRANTED, the claim is DISMISSED and Claimant’s motion is hereby DENIED.

October 8, 2008
Syracuse, New York

Judge of the Court of Claims

The Court has considered the following documents in deciding these motions:


1) Notice of Motion.

2) Affirmations of Patricia M. Bordonaro, Esquire, Assistant Attorney
General, and Molly Zimmermann, Esquire, in support, with exhibits attached thereto.
3) Defendant’s Memorandum of Law in Support of Summary Judgment.

  1. Affidavit in opposition to Defendant’s motion of Sarah Lichtenstein, Esquire, sworn to June 11, 2008, with exhibits attached thereto and Memorandum of Law.


5) Notice of Motion.

6) Affidavit of Sarah C. Lichtenstein, Esquire, sworn to May 9, 2008, Affidavit of Huibert M. Vriesendorp, M.D., sworn to April 10, 2008, and Affidavit of Jeff Scott Olson, Esquire, sworn to April 10, 2008, in support, with exhibits attached thereto, and Memorandum of Law.

7) Reply Affidavit of Sarah C. Lichtenstein, Esquire, in further support of Claimant’s Motion for Summary Judgment sworn to June 17, 2008, with exhibit and Memorandum of Law.

8) Attorney’s Affirmation in response and opposition of Claimant’s motion of Patricia M. Bordonaro, Esquire, Assistant Attorney General.

[1]. Defendant’s Exhibit L.
[2]. Defendant’s Exhibit N.
[3]. Defendant’s Exhibit M.
[4].Defendant’s Exhibit D, page 17.
[5]. Defendant’s Exhibit AA, page 122, lines 7-25.
[6].Defendant’s Exhibit AA, page 124, lines 1-25.
[7].Claimant, by letter dated May 19, 2008, opposed the disclosure of Exhibit U and seeks sanctions. Although this was not made as a formal request by motion, the Court declines to impose sanctions.
[8]. See Defendant’s Exhibit E.
[9].Claimant’s Medical Service Group Fund W-2 is from the University Hill Radiation-Oncology, LLP.
1[0]. See Exhibits AA, SUNY Board of Trustees policies, the Agreements between SUNY and the Research Foundation and Clinical Practice Management Plan Governing Board.
[1]1. See Defendant’s Exhibit H, page 3.
1[2].See Defendant’s Exhibit I, page 1.
1[3]. See Defendant’s Exhibit I, Upstate Medical University Governing Board, Statement of Principles, page 1, item 2.
1[4]. Defendant's Exhibit AA, page 132, lines 2-5.
1[5]. See Claimant’s Exhibits K and L.
1[6].Defendant’s Exhibit F.
1[7]. Defendant’s Exhibit X, page 56, lines 1-3.