

Brook v Zuckerman (2017 NY Slip Op 07682)





Brook v Zuckerman


2017 NY Slip Op 07682


Decided on November 2, 2017


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on November 2, 2017

Tom, J.P., Renwick, Mazzarelli, Oing, Singh, JJ.


4878 652265/13

[*1]Adam Brook, M.D., Ph.D., et al., Plaintiffs-Appellants,
vJay Zuckerman, et al., Defendants-Respondents, John Does #1-5, Defendants.


Adam Brook, appellant pro se.
Schwartz & Thomashower, L.L.P., New York (William Thomashower of counsel), for Adam Brook, M.D., Ph.D., P.L.L.C., and Brook Cardiothoracic Surgery, L.L.C., appellants.
Garfunkel Wild, P.C., Great Neck (Lauren M. Levine of counsel), for respondents.

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered October 18, 2016, which, to the extent appealed from, granted defendants' motion to dismiss the breach of fiduciary duty, tortious interference, defamation, and unfair competition causes of action, unanimously affirmed, without costs.
The court providently exercised its discretion in dismissing the above-cited claims on the grounds of another action pending between the same parties (CPLR 3211[a][4]; see Whitney v Whitney, 57 NY2d 731 [1982]). Both this action and a prior action commenced by plaintiffs in 2012 arose out of the same subject matter or series of alleged wrongs (see PK Rest., LLC v Lifshutz, 138 AD3d 434 [1st Dept 2016]), i.e., defendants' response to a 2009 surgical incident involving plaintiff Adam Brook, M.D., including their peer review and internal investigation and their filing of an Adverse Action Report and maintenance of that report with the National Physicians Database. Both actions seek the same relief for the same alleged injuries.
While plaintiff Brook Cardiothoracic Surgery, L.L.C., and defendant George Keckeisen, M.D., are not parties to the 2012 action, there is still substantial identity of the parties in the two actions, which is sufficient (see id. at 436).
In any event, the defamation, unfair competition, and breach of fiduciary duty causes of action were dismissed in a decision in the 2012 action (see Brook v Peconic Bay Med. Ctr., 152 AD3d 436 [1st Dept 2017]), and their relitigation is precluded by the doctrine of res judicata.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: NOVEMBER 2, 2017
CLERK


