Tamai v Suffolk Anesthesiology Assoc., P.C., Index No. 601902/2015, 6/08/15 (Emerson, J.)

Motion to discontinue without prejudice; mootness; restrictive covenant; CPLR § 3217.

By Samantha Yu | Staff Writer

Defendant employed Plaintiff as an anesthesiologist. Plaintiff’s employment agreement included a restrictive covenant prohibiting her from holding medical staff privileges at four area hospitals for three years after leaving Defendant’s employ. After leaving Defendant, Plaintiff was offered a position with another medical practice, which provided anesthesiology services at two of the hospitals that were the subject of the restrictive covenant. Defendant sent a letter to Plaintiff and her new employer threatening litigation because they violated the restrictive covenant. The new employer withdrew its employment offer and Plaintiff commenced this lawsuit for, inter alia, declaratory and injunctive relief. Plaintiff subsequently sought to discontinue the action without prejudice pursuant to CPLR 3217(b) because she found alternate employment that did not violate the covenant. Defendant objected to the proposed discontinuance, arguing that the discontinuance should be made with prejudice.

Plaintiff also contended that because she found alternate employment that did not violate the restrictive covenant, this case was moot. Defendant countered the mootness argument because Plaintiff may seek future employment that will violate the covenant.

Generally, under CPLR § 3217, a party cannot be compelled to litigate a claim. A plaintiff can discontinue an action at any time unless substantial rights have accrued or an adversary’s rights would be prejudiced. Moreover, absent special circumstances, a motion for leave to discontinue should be granted without prejudice. The stage of the litigation should also be considered; the later the stage, the more plaintiff’s motives should be scrutinized.

The court held that because this case was still in its infancy and substantial rights had not accrued, it did not constitute prejudice necessitating denial of the motion. Plaintiff was no longer pursuing employment that violated the covenant, and as such, a decision by the court would be moot. The court conceded that a moot case may nonetheless be considered when it is demonstrated that there is: (1) a likelihood of repetition, either between the parties or among other members of the public; (2) a phenomenon typically evading review; and (3) a showing of significant or important questions not previously passed on, i.e., substantial and novel issues. Although the court conceded that the issues are likely to be repeated, they were neither novel nor typically evading review.

Accordingly, the court granted the motion to discontinue the action without prejudice.

Tamai v Suffolk Anesthesiology Assoc., P.C., Index No. 601902/2015, 6/08/15 (Emerson, J.).

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