Motion for Writ in Hudson Valley Family Physicians, Pllc D/B/A Medical Center Urgent Care, Amin Elashker D.O., Francesca Hilmi D.O. v. Patricia Chiera| Trellis.Law

On April 12, 2023 a Motion-Secondary was filed involving a dispute between Amin Elashker D.O., Francesca Hilmi D.O., Hudson Valley Family Physicians, Pllc D B A Medical Center Urgent Care, and Patricia Chiera, for Commercial - Contract in the District Court of Ulster County.

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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ULSTER

HUDSON VALLEY FAMILY PHYSICIANS,
PLLC d/b/a MEDICAL CENTER URGENT CARE,
AMIN ELASHKER and FRANCESCA HILMI,
D.O.,
Index No. EF2023-827
Plaintiffs,

-against-

PATRICIA CHIERA,

Defendant.

PLAINTIFFS' MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT'S MOTION TO DISMISS

Dated: Poughkeepsie, New York
January 11, 2024

Brooke D. Youngwirth
Youngwirth Law PLLC
63 Cannon Street – Suite B
Poughkeepsie, NY 12601

Attorneys for Plaintiffs

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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ……………………………………………………….. iii

PRELIMINARY STATEMENT ……………………………………………………. 1

STATEMENT OF FACTS …………………………………………………………. 1

ARGUMENT………………………………………………………………………… 2

Standard of Review………………………………………………………………. 2

Point I: The Court Should Disregard the Documents Submitted by the
Defendant outside of the Pleadings………………………………… 3

Point II: Plaintiffs have Stated a Cause of Action for Breach of Contract….. 4

Point III: Plaintiffs Have Stated a Cause of Action for Unjust Enrichment….. 5

Point IV: Plaintiffs Have Stated a Cause of Action for Breach of the Implied
Duty of Good Faith and Fair Dealing………………………………. 6

Point V: Plaintiffs have Stated a Cause of Action for Breach of Fiduciary
Duty ………………........................................................................... 8

Point VI: Plaintiffs have Stated a Cause of Action for Tortious Interference
with Contract ……………………………………………………… 9

Point VII: Plaintiffs' Complaint States a Cause of Action for Damage to
Business Reputation and Goodwill………………………………... 10

Point VIII: Defendant's Motion Should be Denied Because
Plaintiffs May Amend Their Pleading As of Right…...........................11

Point IX: Plaintiffs' Notice was Proper and Does Not
Warrant Dismissal of the Complaints…………………...................... 12

Point X: Plaintiffs are not Precluded By The Doctrines of Res Judicata
or Collateral Estoppel from Pursuing their Claims against
Defendant in this Action.................................................................... 13

Point XI: Plaintiffs Have Obtained Personal Jursdiction

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Over Patricia Chiera……………………………………........................ 18
CONCLUSION ……………………………………………………………………… 20

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TABLE OF AUTHORITIES
Cases
511 W. 232nd Owners Corp. v. Jennifer Realty Corp., 98 N.Y.2d 144, 152, 773 N.E.2d 496, 499,
746 N.Y.S.2d 131, 134 (2002)………………………………....................................................... 2

83-17 Broadway Corp. v. Debcon Financial Services, Inc., 39 A.D.3d 583 (2d Dept. 2007) citing
Leon, 84 N.Y.2d at 87………………………………………………………………………….... 4

Albrechta v Broome County Indus. Dev. Agency, 274 AD2d 651 (3d Dept 2000) …………….. 5

American Telephone & Utility Consultants, Inc. v Beth Israel Medical Center, 307 AD2d 834
(1st Dept 2003)………………………………………………………………………………….. 6

Associated Fin. Corp. v. Kleckner, No. 09 Civ. 3895 (JGK), 2010 WL 3024746, at *3 (S.D.N.Y.
Aug. 3, 2010)……. …………………………………………………………………………….. 17

Auguston v Spry, 282 AD2d 489 (2d Dept 2001)……………………………………………….. 6

Avilon Auto. Grp. v. Leontiev, 168 A.D.3d 78, 85 (1st Dep't 2019)…………………………... 14

Bedard v. Najim, 222 A.D.2d 979 (3rd Dep't 1995)……………………………………………. 11

Borne Chemical Co. v. Dictrow, 85 A.D.2d 646, 650 (2nd Dep't 1981) ……………................. 10

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 351 (1988)…………………………………... 15

Clark v. City of Ithaca, 235 A.D.2d 746 (3d Dep't 1997); Viscosi v. Merritt, 125 A.D.2d 814 (3d
Dep't 1986)……………………………………………………………………………………… 10

Clark v Daby, 300 AD2d 732 (3d Dept 2002), appeal denied, 100 NY2d 503 (2003)………… 5

Dalton v Educational Testing Service, 87 NY2d 384, 389 (1995)……………………………... 7

EBC I, Inc., 2004 NY App Div LEXIS 12086 (1st Dept 2004). ……………………………….. 7

EBC I Inc. v Goldman Sachs & Co., 7 AD3d 418, 420 (1st Dept 2004)……………………….. 7

EBC I. Inc., v. Goldman Sachs & Co., 5 N.Y.3d 11, 19, 832 N.E.2d 26, 799 N.Y.S.2d 170
(2005). …………………………………………………………………………………………… 5

Evans v. L.F. Rothschild, Unterberg, Towbin, Inc., 131 A.D.2d 278, 520 N.Y.S.2d 940) ……. 15

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Everitt v. Everitt, 4 N.Y.2d 13, 171 N.Y.S.2d 836, 148 N.E.2d 891 (1958)…………………… 12

Fourth Branch Associates Mechanicville v Niagara Mohawk Power Corp., 235 AD2d 962, 965-
966 (3d Dept 1997)………………………………………………………………………………. 7

Frydman & Co. v Credit Suisse First Boston Corp., 272 AD2d 236, 237-238 (1st Dept
2000),…………………………………………………………………………………………….. 8

Goshen v. Mut. Life Ins. Co. of New York, 98 N.Y.2d 314, 326, 774 N.E.2d 1190, 1197
(2002)………………………………………………………………………………………….... 3

Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 372 N.E.2d 17, 20-21, 401 N.Y.S.2d 182, 185
(1977)………………………………………………………………………………………….. 3, 5

Hard Rock Cafe Int'l, (USA), Inc. v. Hard Rock Hotel Holdings, LLC, 808 F.Supp.2d 552, 567
(S.D.N.Y. 2011)………………………………………………………………………………… 10

Hyde Park Prod. Corp. v. Maximilian Lerner Corp., 65 N.Y.2d 316, 480 N.E.2d 1084 (1985).. 10

JFK Hotel Owner, LLC v. Hilton Hotels Corp., 2014 WL 1097971, at *13 (N.Y. Sup. Ct. Mar.
14, 2014)……………………………………………………………………………………….. 10

Johnson v. Spence, 286 A.D.2d 481 (2d Dep't 2001)…………………………………………... 11

Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455 (1985) ……………………………………… 13

Kids Cloz, Inc. v Officially for Kids, Inc., 2001 US Dist. LEXIS 1135, * 10-11 (SDNY,
February 7, 2001)………………………………………………………………………………… 8

Kirke La Shelle Co. v Armstrong Co., 263 NY 79, 87 [1933])………………………………….. 7

Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413, 424 (1996)…………………………... 9

Leon v. Martinez, 84 N.Y.2d 83, 87-88, 638 N.E.2d 511, 513, 614 N.Y.S.2d 972, 974 (1994)… 2

Mandelblatt v Devon Stores, 132 AD2d 162, 168 (1st Dept 1987)……………………………… 8

Masudi v. Maximo Couture Inc., 971 N.Y.S.2d 72 (Sup. Ct. 2013)…………………………… 17

Matter of Estate of Witbeck, 245 AD2d 848 (3d Dept 1997)……………………………………. 5

Me Corp. v Cohen Brothers LLC, 292 AD2d183 (1st Dept 2002)………………………………. 6
iii

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Mori v. El Asset Mgmt., 15-cv-1991 (AT), 2016 U.S. Dist. LEXIS 27911, at *7-8 (S.D.N.Y. Jan.
28, 2016)………………………………………………………………………………………... 16

Paramount Pictures Corp., 30 NY2d 415 ………………………………………………………. 14

Paramount Pictures Corp. v. Allianz Risk Transfer AG, 31 N.Y.3d at 64……………………... 13

Paramount Film Distrib. Corp. v State of New York, 30 NY2d 415, 421 (1972)……………….. 5

Richbell Info. Servs., 309 A.D.2d at 289, 765 N.Y.S.2d at 578………………………………… 2

Roth v. Goldman, 254 A.D.2d 405, 679 N.Y.S.2d 92 (1998)……………………........................ 3

Rodgers v. Earl, 249 A.D.2d 990 (4th Dept. 1998)……………………………………………… 5

Ross v. Medical Liab. Mut. Ins. Co., 75 N.Y.2d 825, 826, 552 N.Y.S.2d 559, 551 N.E.2d
1237)……………………………………………………………………………………………. 14

Samsung Display Co., Ltd. v Acacia Research Group, 2014 WL 6791603, at *3 (S.D.N.Y. Dec.
3, 2014)…………………………………………………………………………………………. 11

Sims v First Consumers National Bank, 303 AD2d 288 (1st Dept 2003)……………………….. 8

Smith McDonnell Stone & Co. v. Delicato Vineyards, 9-CV-6474, 1995 WL 375918, at *4
(S.D.N.Y. June 22, 1995)……………………………………………………………………….. 11

Sternberg v Walber 36th Street Assoc., 187 AD2d 225, 227-28 (1st Dept 1993)……………….. 6

STS Mgmt. Dev. v. New York State Dep't of Taxation & Fin., 254 A.D.2d 409 (2d Dep't
1998)………………………………………………………………………................................. 11

Swergold v. Cuomo, 99 A.D.3d 1141, 1144, 952 N.Y.S.2d 813 (3d Dept. 2012)……………... 17

Vassenelli v. City of Syracuse, 138 A.D.3d 1471, 1473, 31 N.Y.S.3d 320, 323 (2016)……….. 14

Viscosi v. Merritt, 125 A.D.2d 814, 510 N.Y.S.2d 30 (3d Dep't 1986)………..………………. 10

Zayatz v. Collins, 48 A.D.3d 1287, 1290, 851 N.Y.S.2d 797…………………..……………… 14

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Rules
Fed. R. Civ. P. 13(a)…………………………………………………………………………….. 16

NY CPLR 2001………………………………………………………………………………… 12

NY CPLR § 305(b)……………………………………………………………………… 1, 12, 18

NY CPLR 3017(a)…………………………………………………………………………….… 11

NY CPLR 3025(a)…………………………………………………………………………….... 11

NY CPLR 3211……………………………………………….……………………………… 1, 18

NY CPLR 3211(a)(5)………………………………………………………………………... 1, 18

NY CPLR § 3211(a)(7) ……………………………………………………………………… 2, 18

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PRELIMINARY STATEMENT

Plaintiffs, Hudson Valley Family Physicians, PLLC, Amin Elashker, and Francesca Hilmi

(“Plaintiffs”) respectfully submit this memorandum of law in opposition to Defendant Patricia

Chiera’s (“Defendant”) motion to dismiss Plaintiff’s Complaint pursuant to CPLR 3211(a)(5),

CPLR 3211, and CPLR 305(b), and request that Defendant’s motion be denied, together with such

other and further relief as the Court may deem just and proper.

STATEMENT OF FACTS

On February 25, 2021, Defendant, along with a non-party to this action, Robert Donaldson,

filed a Complaint with the U.S District Court for the Northern District of New York (“the Federal

Court”) seeking relief and/or damages for Defendants’ alleged failure to pay overtime under the

Fair Labor Standards Act (“FLSA”) and New York State Labor Law and for breach of contract

under New York State common law. See Russell Wheeler Attorney Affirmation (“Wheeler

Affirmation”), Complaint, Exhibit F. Chiera and Donaldson do not have a joint employment

contract with Plaintiffs. Chiera had an agreement with Plaintiffs that Donaldson is not a party to,

which is the subject of this matter. The Federal Court matter will be referred to as “the Federal

Case” for ease of reference herein.

On May 23, 2022, partial judgment was entered in the Federal Case, through an offer of

judgment, which resolved Robert Donaldson and Patricia Chiera’s claims against Plaintiffs under

the New York State labor law and Fair Labor Standards Act, which were their First, Second and

Third Causes of Action within the Federal Complaint. Wheeler Affirmation at Exhibit E, Docket

Report.

On April 12, 2023, Plaintiffs filed the instant action through a Summons with Notice for

breach of contract against Defendant Chiera in Ulster County, New York State Supreme Court for

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a breach of her contract with Plaintiffs. See Wheeler Affirmation, Exhibit A, Summons with

Notice.

On March 27, 2023, the Northern District Court permitted Plaintiffs HVFP, Elashker, and

Hilmi’s request for permission to file a motion to dismiss or remand Defendant Chiera and non-

party Donaldson’s Complaint for lack of subject matter jurisdiction so that those claims may be

pursued in New York State Court. Id. That motion for dismissal was denied with the Federal Court

and a conference with the Court is upcoming. Id.

ARGUMENT

STANDARD OF REVIEW

On a motion to dismiss for failure to state a cause of action, the court must accept the facts

alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable

inference, and determine only whether the facts as alleged fit within any cognizable legal

theory. N.Y. CPLR § 3211(a)(7). Dismissal based on defense founded upon documentary evidence

is warranted only if documentary evidence submitted conclusively establishes defense to asserted

claims as matter of law. McKinney's CPLR 3211(a).

To prevail on a motion to dismiss based on documentary evidence under CPLR 3211 (a)(1),

a movant's burden is heavier: it must establish that the document relied upon definitively and

“conclusively establishes a defense to the asserted claims as a matter of law.” Richbell Info.

Servs., 309 A.D.2d at 289, 765 N.Y.S.2d at 578, quoting 511 W. 232nd Owners Corp. v. Jennifer

Realty Corp., 98 N.Y.2d 144, 152, 773 N.E.2d 496, 499, 746 N.Y.S.2d 131, 134 (2002),

citing, among other authorities, Leon v. Martinez, 84 N.Y.2d 83, 87-88, 638 N.E.2d 511, 513, 614

N.Y.S.2d 972, 974 (1994) and Goshen, 98 N.Y.2d at 326, 774 N.E.2d at 1196, N.Y.S.2d at 864).

Indeed, when evidentiary material is submitted on a motion to dismiss under CPLR 3211, the

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Plaintiff’s claims may not be dismissed “unless it has been shown that a material fact as claimed

by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists

regarding it.” Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275, 372 N.E.2d 17, 20-21, 401

N.Y.S.2d 182, 185 (1977).

POINT I

THE COURT SHOULD DISREGARD THE DOCUMENTS SUBMITTED BY THE
DEFENDANT OUTSIDE OF THE PLEADINGS

A CPLR 3211(a)(1) motion to dismiss on the ground that the action is barred by

documentary evidence, may be appropriately granted only where the documentary evidence utterly

refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law. Goshen

v. Mut. Life Ins. Co. of New York, 98 N.Y.2d 314, 326, 774 N.E.2d 1190, 1197 (2002).

Here, the evidence submitted by the Defendant fails to conclusively establish that there

was, a final determination of the federal court matter, and that the identity of the parties and the

issues such that the federal action has a preclusive effect on the causes of action raised in this

action. The documents submitted do not refute the allegations in the complaint as a matter of law

that Chiera violated the contract in numerous ways and that she continues to do so.

Importantly, Defendant has submitted some, but not all discovery documents and

deposition transcripts from the Federal Case in an attempt to have this Court determine the claims

at issue in this case prior to any discovery and utilizing only a portion of the evidence that supports

Plaintiffs’ claims. Doing so gives the Court an incomplete picture of the claims at issue in the

Federal Case and in this case. Defendant attempts, in essence, to turn the applicable standard into

that of a motion for summary judgment rather than a motion to dismiss. However, a motion to

dismiss could not be converted into motion for summary judgment without first notifying parties.

McKinney's CPLR 3211(a), pars. 1, 7. Roth v. Goldman, 254 A.D.2d 405, 679 N.Y.S.2d 92 (1998).

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In the event that the Court does determine that it will consider the extensive documentation

submitted by the Defendant from the partial discovery completed in the Federal Case, the Plaintiffs

respectfully request that it convert the motion into one for summary judgment, permit the Plaintiffs

to complete discovery in this matter with respect to its claim of breach of contract claim, and then

submit a response to the motion for summary judgment.

POINT II
PLAINTIFFS HAVE STATED A CAUSE OF ACTION FOR BREACH OF CONTRACT
Defendant moves to dismiss Plaintiffs’ cause of action for breach of contract. However,

The Complaint more than adequately states a cause of action for breach of contract by setting forth

the essential terms of the contract that Defendant is alleged to have breached, together with the

facts supporting her breaches. Indeed, the only challenge advanced by Defendant to the breach of

contract causes of action is that the contract itself, extrinsic evidence, improperly submitted within

this motion to dismiss, establishes that Chiera had the right to terminate her obligations under its

provisions and that the covenant not to compete on which the remaining breach allegations are

premised apply to “urgent care/walk in setting only”.

However, testimony from multiple witnesses, including the Plaintiffs, will demonstrate

both that the contract was not limited to “urgent care/walk in setting only” as alleged by Defendant,

but that Defendant was is fact breaching the contract with Plaintiff in engaging in urgent care work

in an urgent care setting at Pulse MD, which is an urgent care facility.

Upon considering a motion to dismiss interposed pursuant to CPLR § 3211(a)(7), which

seeks to dismiss a complaint for failure to state a cause of action, “the court must afford the

pleadings a liberal construction, accept all facts as alleged in the pleadings to be true, and accord

the plaintiff the benefit of every possible inference…” 83-17 Broadway Corp. v. Debcon Financial

Services, Inc., 39 A.D.3d 583 (2d Dept. 2007) citing Leon, 84 N.Y.2d at 87. A motion to dismiss

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must be denied if the factual allegations contained in the complaint constitute a cause of action

cognizable at law. See Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 372 N.E.2d 17, 401 N.Y.S.2d

182 (1977). Whether a plaintiff can “ultimately establish its allegations is not part of the calculus

in determine a motion to dismiss for failure to state a cause of action.” EBC I. Inc., v. Goldman

Sachs & Co., 5 N.Y.3d 11, 19, 832 N.E.2d 26, 799 N.Y.S.2d 170 (2005).

A complaint survives a motion to dismiss for failure to state a cause of action if it gives the

court and the parties “notice” of what plaintiff intends to prove and the material elements of a

cause of action. See CPLR § 3013; see also Rodgers v. Earl, 249 A.D.2d 990 (4th Dept. 1998).

Plaintiffs’ Complaint clearly provides such notice and therefore, Defendant’s argument is without

merit.

POINT III

PLAINTIFFS HAVE STATED A CAUSE OF ACTION FOR UNJUST ENRICHMENT

Likewise, Plaintiffs’ Complaint adequately states a claim against Defendant for unjust

enrichment. A cause of action for unjust enrichment must allege that a defendant was enriched at

a plaintiff’s expense and that, under principles of equity and good conscience, the defendant should

not be permitted to retain what is sought to be recovered. Matter of Estate of Witbeck, 245 AD2d

848 (3d Dept 1997); see also Clark v Daby, 300 AD2d 732 (3d Dept 2002), appeal denied, 100

NY2d 503 (2003); Albrechta v Broome County Indus. Dev. Agency, 274 AD2d 651 [3d Dept 2000]

citing Paramount Film Distrib. Corp. v State of New York, 30 NY2d 415, 421 (1972).

Plaintiffs have successfully stated a cause of action for unjust enrichment by alleging in

the Complaint that Defendant enriched herself at Plaintiffs' expense during the course of his

employment and following his termination of the Agreement, by diverting and induce Plaintiffs’

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patient base to use the urgent care services of Nuvance Health and Pulse MD, who are competitors

serving the same patient pool as Plaintiffs for his own financial gain.

Defendant argues that Plaintiffs’ cause of action for unjust enrichment is repetitive of its

breach of contract cause of action. However, causes of action for breach of contract and unjust

enrichment may be pled in the alternative. Auguston v Spry, 282 AD2d 489 (2d Dept 2001);

Sternberg v Walber 36th Street Assoc., 187 AD2d 225, 227-28 (1st Dept 1993) (holding it has

“never been the law in New York” that a claim for breach of contract and one in quasi-contract

“are mutually exclusive in all events and under all circumstances”).

Although the existence of a valid and enforceable contract covering a particular subject

may “preclude recovery in quasi-contract for events arising out of the same subject matter ... where

there is a bona fide dispute as to the existence of a contract or where the contract does not cover

the dispute in issue, plaintiff may proceed upon a theory of quantum meruit and will not be required

to elect his or her remedies”. American Telephone & Utility Consultants, Inc. v Beth Israel Medical

Center, 307 AD2d 834 (1st Dept 2003) [citations omitted]. That the same underlying facts may

give rise to a breach of contract cause of action does not foreclose a cause of action for unjust

enrichment. American Telephone, 307 AD2d 834, supra.

Furthermore, where, as here, an unjust enrichment cause of action is pled alternatively, it

is premature to grant a motion to dismiss where there is a dispute as to the scope, enforceability or

applicability of the agreements. Me Corp. v Cohen Brothers LLC, 292 AD2d183 (1st Dept 2002).

As such, the Defendant’s argument is without merit.

POINT IV

PLAINTIFFS HAVE STATED A CAUSE OF ACTION FOR BREACH OF THE IMPLIED
DUTY OF GOOD FAITH AND FAIR DEALING

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The covenant of good faith and fair dealing, an implied term of every contract, includes a

promise that “ ‘neither party shall do anything which will have the effect of destroying or injuring

the right of the other party to receive the fruits of the contract’ ” Dalton v Educational Testing

Service, 87 NY2d 384, 389 (1995), quoting Kirke La Shelle Co. v Armstrong Co., 263 NY 79, 87

[1933]). The implied covenant of good faith and fair dealing is breached “when a party to a contract

act in a manner that, although not expressly forbidden by any contractual provision, would deprive

the other party of the right to receive the benefits under their agreement”. Fourth Branch Associates

Mechanicville v Niagara Mohawk Power Corp., 235 AD2d 962, 965-966 (3d Dept 1997).

Defendant argues that Plaintiffs, while they allege to have been damaged “as a direct and

proximate cause of’ Chiera’s supposed breach, fail to explain the supposed connection with respect

to how Chiera’s termination of the contract caused damage to it. However, Plaintiffs have

successfully stated a cause of action for breach of the implied term of good faith and fair dealing

by alleging in the Complaint that the actions of the Defendant in terminating the Agreement sought

to deprive the Plaintiffs of the benefits of the contract and that Plaintiffs’ were denied the benefits

of same because he improperly terminated his employment relationship with HVFP and continued

employment with Pulse MD who is a competitor of HVFP during her employment with HVFP,

among other reasons.

New York courts have held that where the issues are still undeveloped in the pre-answer

stage of litigation, dismissal of the breach of duty of good faith and fair dealing claim is premature.

Sims v First Consumers National Bank, 303 AD2d 288 (1st Dept 2003), citing Frydman & Co. v

Credit Suisse First Boston Corp., 272 AD2d 236, 237-238 (1st Dept 2000), [“While contract and

implied duty claims may be redundant, there are cases in which both are viable. Since the issues

in the instant case are still undeveloped in this pre-answer stage, both claims at this stage should

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stand”]; see also EBC, Inc. v Goldman Sachs & Co., 7 AD3d 418, 420 (1st Dept 2004), re-

argument denied, lv to appeal granted, EBC I, Inc. v Goldman Sachs & Co., 2004 NY App Div

LEXIS 12086 (1st Dept 2004).

The factual determination of whether Defendant’s actions were prohibited by the express

contractual terms, or a separate breach of her implied duty of good faith and fair dealing is not yet

before this Court. Defendant has not yet filed an answer to the Complaint or taken a position.

Therefore, dismissal of Plaintiffs' breach of implied covenant claim is premature. Such a dismissal

at this stage of the litigation would allow Defendant to assert later in the litigation that the express

terms of the contract did not prohibit one or more of his actions, leaving Plaintiffs without any

remedy should the trier of fact agree. As such, the Defendant’s request for dismissal should be

denied.

POINT V

PLAINTIFFS HAVE STATED A CAUSE OF ACTION FOR BREACH OF FIDUCIARY
DUTY

Defendant also argues that Plaintiff has failed to state a cause of action for breach of

fiduciary duty. A fiduciary relationship exists when one person “is under a duty to act for or to give

advice for the benefit of another upon matters within the scope of relation” Mandelblatt v Devon

Stores, 132 AD2d 162, 168 (1st Dept 1987), quoting Restatement [Second] of Torts § 874,

comment a). The elements of a breach of fiduciary duty cause of action are: (1) the defendant owed

a fiduciary duty to the plaintiff, (2) the defendant breached that duty, and (3) the plaintiff suffered

injury as a result. Kids Cloz, Inc. v Officially for Kids, Inc., 2001 US Dist. LEXIS 1135, * 10-11

([SDNY, February 7, 2001)

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Plaintiffs have properly stated a cause of action for breach of fiduciary duty by alleging in

the Complaint that: (1) Defendant owed a fiduciary duty to Plaintiffs under the terms of the

contract, (2) Defendant breached its fiduciary duty 3) Defendant engaged in a fraudulent scheme

that was contrary to and in breach of the common law, contractual and statutory fiduciary duties

of loyalty, care and utmost candor that Defendant owed to Plaintiffs inter alia, by systematically

engaging in a clandestine course of conduct through which Defendant caused the unauthorized and

improper diversion, waste, misappropriation and transfer, directly or indirectly, of significant

monies and assets from Plaintiff to Defendant and to her other employer and actively undermined

Plaintiffs' best interests, and (4) Defendant’s breach of fiduciary duty caused injury to Plaintiffs

through the diversion of business and funds to those entities and to Defendant herself.

Plaintiffs also adequately allege that Defendant failed not only to fulfill the express terms

of applicable contract, but also actively undermined the purpose of the contract in breach of its

fiduciary duty inherent in said contract. As such, the Complaint is sufficiently plead with respect

to a cause of action for breach of fiduciary duty and it would not be proper to dismiss it at this

stage.

POINT VI

PLAINTIFFS HAVE STATED A CAUSE OF ACTION FOR TORTIOUS
INTERFERENCE WITH CONTRACT

Defendant’s attempt to dismiss the Causes of Action alleging Defendants’ interference with

her obligations to Plaintiffs under the contract also must fail. The elements of a claim for tortious

interference with contract are “the existence of a valid contract between the plaintiff and a third

party, defendant's knowledge of that contract, defendant's intentional procurement of the third-

party's breach of the contract without justification, actual breach of the contract, and damages

resulting therefrom.” Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413, 424 (1996); see also

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JFK Hotel Owner, LLC v. Hilton Hotels Corp., 2014 WL 1097971, at *13 (N.Y. Sup. Ct. Mar. 14,

2014).

Despite the Defendant’s unsupported contentions that Plaintiffs have failed to discuss in

detail the contracts which Defendant’s actions subverted, “[a]bsolute precision is not necessary” if

the notice provides the Defendant with basic information concerning the nature of the plaintiffs

claim and the relief sought. See Clark v. City of Ithaca, 235 A.D.2d 746 (3d Dep't 1997); Viscosi

v. Merritt, 125 A.D.2d 814 (3d Dep't 1986). Plaintiff is not required to initially plead each and

every contract provision subverted by Defendant’s action as alleged within his motion and must

just give adequate notice of same. In any event, Plaintiffs could amend their pleading as a matter

to rectify such deficiency if the Court were to find same was insufficient. Moreover, Plaintiffs

adequately described the provisions of the contract that were breached and how Defendant

breached them. As such, this argument is without merit.

POINT VII

PLAINTIFFS’ COMPLAINT STATES A CAUSE OF ACTION FOR DAMAGE TO
BUSINESS REPUTATION AND GOODWILL

Next, Defendant argues that the Complaint fails to state a cause of action for damage to

business reputation and goodwill. Plaintiffs are entitled to recover damages equal to the amount of

loss sustained, including opportunities for profit on accounts diverted through defendant's conduct.

Hyde Park Prod. Corp. v. Maximilian Lerner Corp., 65 N.Y.2d 316, 480 N.E.2d 1084 (1985).

Damages to goodwill are sufficient to withstand a Motion to Dismiss. See e.g. Hard Rock Cafe

Int'l, (USA), Inc. v. Hard Rock Hotel Holdings, LLC, 808 F.Supp.2d 552, 567 (S.D.N.Y. 2011)

(holding that “the [counterclaimants] allege that the purported breaches damaged their ‘goodwill,

standing and reputation.’ These allegations are sufficient to survive a motion to dismiss”) (citation

omitted); Borne Chemical Co. v. Dictrow, 85 A.D.2d 646, 650 (2nd Dep't 1981) (“The measure of

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damages for wrongful diversion of good will or competition in violation of such a restrictive

covenant is the loss sustained by reason of the breach, including the net profits of which the

plaintiff was deprived by the defendant's acts”); Samsung Display Co., Ltd. v Acacia Research

Group, 2014 WL 6791603, at *3 (S.D.N.Y. Dec. 3, 2014) (holding that the plaintiff “has identified

specific injury in the form of damage to its goodwill and reputation – and that is satisfactory on a

motion to dismiss”), citing Smith McDonnell Stone & Co. v. Delicato Vineyards, 9-CV-6474, 1995

WL 375918, at *4 (S.D.N.Y. June 22, 1995). Moreover, monetary damages are not required in

order to sustain a breach of contract claim. See NY CPLR 3017(a). As such, Defendant’s request

to dismiss the case of action for damage to business reputation and goodwill should be denied.

POINT VIII

DEFENDANT’S MOTION SHOULD BE DENIED BECAUSE PLAINTIFFS MAY
AMEND THEIR PLEADING AS OF RIGHT

CPLR 3025(a) provides that “[a] party may amend his pleading once without leave of court

within twenty days after its service, or at any time before the period for responding to it expires,

or within twenty days after service of a pleading responding to it.” The filing of a motion to dismiss

tolls the time to serve a responsive pleading, and, in turn, tolls the time for Plaintiff to file an

amended complaint as of right. See Johnson v. Spence, 286 A.D.2d 481 (2d Dep't 2001); STS

Mgmt. Dev. v. New York State Dep't of Taxation & Fin., 254 A.D.2d 409 (2d Dep't 1998). Here,

in the event that the Court finds the Defendant’s arguments availing, the Complaint can be

amended as of right and all purported defects remedied. It is respectfully submitted that the

Complaint is properly pled; Plaintiff merely articulates this point as an alternative in support of the

court's preference for resolving claims on the merits. See Bedard v. Najim, 222 A.D.2d 979 (3rd

Dep't 1995).

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Additionally, CPLR 2001 states that “the court may permit a mistake, omission, defect or

irregularity [in a pleading] to be corrected, upon such terms as may be just, or, if a substantial right

of a party is not prejudiced.” Here, to the extent that the Court does not believe that the Complaint

is pled with sufficient particularity, although it is, additional particularity could be included in an

amended Complaint if necessary.

Therefore, bearing in mind the favorable light by which the Court must assess the

Complaint, Plaintiffs’ causes of action within their Complaint are adequately pled.

POINT IX

PLAINTIFFS’ NOTICE WAS PROPER AND DOES NOT WARRANT DISMISSAL OF
THE COMPLAINT

Defendant alleges that the Complaint should be dismissed because, pursuant to NY CPLR

§ 305(b), the notice that was served with the summons did not detail all causes of action ultimately

plead. However, the purpose of the notice is simply to provide the Defendant with at least basic

information concerning the nature of the Plaintiffs’ claim and the relief sought. Viscosi v. Merritt,

125 A.D.2d 814, 510 N.Y.S.2d 30 (3d Dep't 1986). The description in a notice on summons need

not be absolutely precise, the complete absence of any notice is a jurisdictional defect, which defect

renders the summons insufficient not only for the purposes of taking a default judgment, but also

to obtain jurisdiction over a defendant. Id. Furthermore, where a complaint is served with the

summons, the notice is at once rendered of no importance. Everitt v. Everitt, 4 N.Y.2d 13, 171

N.Y.S.2d 836, 148 N.E.2d 891 (1958).

Defendant having appeared generally; Plaintiffs were not required to limit the complaint

to only the causes of action stated in the notice. Id. Defendant’s counsel appeared and demanded

a Complaint, which was served upon it, which provided Defendant adequate notice of the claims

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against her. Defendant has been provided with sufficient and timely notice of the claims against

her. As such, this argument is without merit.

POINT X

PLAINTIFFS ARE NOT PRECLUDED BY THE DOCTRINES OF RES JUDICATA OR
COLLATERAL ESTOPPEL FROM PURSUING THEIR CLAIMS AGAINST
DEFENDANT IN THIS ACTION

Issue preclusion, also known as collateral estoppel, bars the re-litigation of an issue of fact

or law actually litigated and resolved in a valid court determination essential to the prior judgment;

as a result, the determination of an essential issue is binding in a subsequent action, even if it recurs

in the context of a different claim. Paramount Pictures Corp. v. Allianz Risk Transfer AG, 31

N.Y.3d at 64.

In New York, issue preclusion also “precludes a party from relitigating an issue which has

previously been decided against him in a proceeding in which he had a fair opportunity to fully

litigate the point.” Kaufman v. Eli Lilly & Co., 65 N.Y.2d 449, 455 (1985) (quotations omitted).

It applies if two requirements are satisfied: (1) “the identical issue necessarily must have been

decided in the prior action and be decisive of the present action,” and (2) “the party to be precluded

from relitigating the issue must have had a full and fair opportunity to contest the prior

determination.” Id. (emphasis added). “The party seeking the benefit of collateral estoppel has the

burden of demonstrating the identity of the issues in the present litigation and the prior

determination, whereas the party attempting to defeat its application has the burden of establishing

the absence of a full and fair opportunity to litigate the issue in the prior action.” Id. Issue

preclusion does not apply here because Plaintiff's claims have never been resolved “on the merits

by a court of competent jurisdiction.” Avilon, 168 A.D.3d at 85 (quotations omitted).

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Claim preclusion (res judicata) “bars successive litigation based upon the same transaction

or series of connected transactions if: (i) there is a judgment on the merits rendered by a court of

competent jurisdiction, and (ii) the party against whom the doctrine is invoked was a party to the

previous action, or in privity with a party who was.” Avilon Auto. Grp. v. Leontiev, 168 A.D.3d

78, 85 (1st Dep't 2019) (quotations omitted). Only claim preclusion can bar claims that could

have been raised in earlier proceedings but were not. Id.: see also Paramount Pictures Corp., 30

NY2d 415 (Issue preclusion only bars claims that were “actually litigated and resolved”). Claim

preclusion does not apply here because there has not been a judgment on the merits rendered by a

court of competent jurisdiction with respect to any matter brought before this court.

Contrary to Defendant’s contention, Plaintiffs are not barred by collateral estoppel from

asserting the state law causes of action because as they were not “‘actually litigated, squarely

addressed and specifically decided’” in the Federal Action. Zayatz v. Collins, 48 A.D.3d 1287,

1290, 851 N.Y.S.2d 797, quoting Ross v. Medical Liab. Mut. Ins. Co., 75 N.Y.2d 825, 826, 552

N.Y.S.2d 559, 551 N.E.2d 1237). See also, Vassenelli v. City of Syracuse, 138 A.D.3d 1471, 1473,

31 N.Y.S.3d 320, 323 (2016).

The federal court has not decided any issues of law or fact with respect to the Plaintiff’s

contract with Defendant or Defendant’s breach of her employment contract with Plaintiffs. In fact,

the Court allowed Plaintiffs to move to dismiss Ms. Chiera and Mr. Donaldson’s Complaint due to

lack of subject matter jurisdiction, wherein it just issued a decision regarding the fact that wage

and hour claims against Defendant Hudson Valley Family Physicians were dismissed through an

offer of judgment, but not wage and hour claims against Dr. Hilmi and Dr. Elashker individually.

See Wheeler Affirmation, Exhibit D, Docket Report # 53 (“TEXT ORDER. At the most recent

discovery conference, counsel for Defendants requested permission to make a motion to remand

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Julian Schreibman Track Judge’s New Case

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January 11, 2024

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April 12, 2023

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Motion-Secondary: Hudson Valley Family Physicians, Pllc D/B/A Medical Center Urgent Care, Amin Elashker D.O., Francesca Hilmi D.O. v. Patricia Chiera

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