Ritch v. New York Eye and Ear Infirmary

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

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RITCH et al., OPINION & ORDER

Plaintiffs,

20-cv-7344 (JW)

-against-

NEW YORK EYE AND EAR INFIRMARY et al.,

Defendants.

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JENNIFER E. WILLIS, United States Magistrate Judge:

The Plaintiffs, a Physician and his single member LLC, became embroiled in a

dispute with the Defendants, an ophthalmology office and its President, after the

Defendants ended the Parties’ two contracts. The Defendants accused the Plaintiff,

Dr. Ritch, of acting unprofessionally and Dr. Ritch accused the Defendants of

defamation, negligent infliction of emotional distress, failure to abide by the terms of

their agreements, and a failure to properly terminate the two agreements. A review

of the record proves that the two contracts were, in fact, properly terminated. The

first contract could be terminated, without cause, upon sufficient advanced notice.

This notice was given. The second contract could be terminated upon termination of

the first contract. Because both contracts were properly discontinued, the Parties

have no remaining obligations to one another.

For the reasons that follow, Plaintiffs have failed to establish that there exists

any “genuine dispute as to any material fact.” See Fed. R. Civ. P. 56(c). Thus,

Plaintiffs’ Cross Motion for Summary Judgment is DENIED, and Defendants’ Motion

for Summary Judgment is GRANTED.

PROCEDURAL POSTURE

This case began in July 2020, when Robert Ritch, M.D. (“Dr. Ritch”) and his

single member LLC, Robert Ritch, M.D. LLC (“the LLC”) (collectively the “Plaintiffs”)

commenced a civil action against the Defendants New York Eye and Ear Infirmary

(“NYEE”) and Dr. James Tsai, the President of NYEE, in New York Supreme Court

(the "State Court Action"). Dkt. No. 1-1.

The action alleged Breach of Contract, Age Discrimination in violation of the

New York State Human Rights Law and the Age Discrimination Act (ADEA),

Tortious Interference with a Business Relationship, Tortious Interference with a

Contractual Relationship, Negligent Infliction of Emotional Harm, and Defamation.

Dkt. No. 1-1.

In September 2020, the Defendants removed the action to federal court

“pursuant to 28 U.S.C. § 1441(a) on the ground that it is an action over which this

Court would have original federal question jurisdiction… the Age Discrimination in

Employment Act (the "ADEA"), 42 U.S.C. § 1981, 42 U.S.C. § 1983, and 42 U.S.C. §

1985.” Dkt. No. 1 at 2.

In October 2020, the Parties consented to the jurisdiction of Magistrate Judge

Fox to conduct all proceedings and order the entry of a final judgment in accordance

with 28 U.S.C. 636(c). Dkt. No. 14. Then, the Plaintiff filed a Second Amended

Complaint in April 2021. Dkt. No. 28. On February 4, 2022, the case was reassigned

to Magistrate Judge Willis.

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In August 2022, the Plaintiffs withdrew the cause of action for age

discrimination. Dkt. No. 56. In January 2023, with the Defendants’ consent, the

Plaintiffs filed a Third Amended Complaint. Dkt. No. 91.

In March 2023 the Defendants filed a Motion for Summary Judgment. Dkt. No.

118. In April, the Plaintiffs filed a Cross Motion for Summary Judgment. Dkt. No.

129.

The Parties filed replies, sur-replies, and sur-sur replies. Dkt. Nos. 132-143.

Briefing concluded on June 13, 2023. Dkt. No. 143.

BACKGROUND

The Plaintiff, Dr. Ritch, is an Ophthalmologist who is apparently “known

around the world as among the very best leading experts in treating Glaucoma.” Dkt.

No. 91 at 1. The other Plaintiff is Robert Ritch, M.D., LLC, a single-member company

owned and operated entirely by Dr. Ritch. Dkt. No. 91 at 2.

Defendant, New York Eye and Ear Infirmary (NYEE) is a specialized Eye and

Ear Hospital in New York owned by the Mount Sinai hospital system. Dkt. No. 91 at

2. Defendant James Tsai was the President of NYEE for all the periods relevant to

the dispute.

In April 2015, on the same day, NYEE and the LLC entered into two different

contracts: the License Agreement (the “LA”, Dkt. No. 129-8) and the Director Services

Agreement (the “DSA”, Dkt. No. 129-7).

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The License Agreement permitted the LLC access to NYEE facilities in

exchange for an annual fee of $156,285.00. The LA was for a two-year term to be

“automatically renewed for successive one year periods.” Dkt. No. 129-8, Sec. 2.

Importantly, the LA stated that, “Notwithstanding anything herein to the

contrary, each party hereto shall be entitled to terminate this Agreement without

cause upon one hundred twenty (120) days prior written notice…” Dkt. No. 129-8,

Sec. 2(a).

The Director Services Agreement provided that the “Hospital desires to retain

the Company to…provide research and administrative services to the Hospital.” And

thus the Parties agreed that the “Hospital engages Company to make the Director

available to provide services set forth in Exhibit A.” Dkt. No. 129-7, Sec. 1.

In exchange, the DSA stated that “as consideration for the services

provided…Hospital will pay Company annual compensation (“the Fee”) of One

Hundred Fifty-Three Thousand Five Hundred Dollars ($153,500)…plus $33.00 per

hour for each hour of services provided.” Dkt. No. 129-7, Sec. 6.

In Section 3 of the DSA, “Services to be Provided” the contract says, “The

Hospital also agrees to offer Karen Cheifetz a part time employment opportunity, for

twenty two and one-half hours per week, so that Ms. Cheifetz may provide Company

with administrative assistance related solely to Company’s services hereunder. The

Hospital shall provide Ms. Cheifetz, or in the event Ms. Cheifetz declines the

Hospital’s offer of employment or ceases being a Hospital employee, a replacement

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administrative assistant with suitable office space, reasonably determined by the

hospital.” Dkt. No. 129-7, Sec. 3(a).

In the DSA, the Parties also agreed that “the terms of Company’s engagement

are governed by the policies of Hospital, including specifically, the Medical Staff

Bylaws and Rules and Regulations of the Medical Staff of Hospital as amended from

time to time.” Dkt. No. 129-7, Sec. 1.

The DSA also had a termination clause: “this Agreement may be terminated…

by Hospital, with or without cause, upon one hundred eighty (180) days prior written

notice to Company…this Agreement may be terminated by Hospital for cause

immediately upon notice to Company. Hospital shall have cause for termination in

the event of: i) Company’s failure to perform any material provision of this

Agreement, and such failure continues for a period of ten (10) days after written

notice to Company stating the nature of the failure, unless such failure is cured to

the reasonable satisfaction of Hospital within such 10-day period; ii) Company’s,

Research Coordinators, or Director (as the case may be) failure to satisfy or maintain

any of the qualifications listed in Section 1 above; iii) Company becomes unable to

fulfill its obligations under this Agreement; iv) Company’s Research Coordinator’s, or

Director’s conviction of a crime or entering into a plea of guilty or no contest with

respect to a crime; and v) termination of the License Agreement.” Dkt. No. 129-7, Sec.

7(b) (emphasis added).

On January 22, 2019, Dr. Tsai hand-delivered a letter to Dr. Ritch purporting

to terminate the License Agreement. Dkt. No. 120-8.

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The letter alleged, “a review of your file shows that you have a long history of

inappropriate behavior towards hospital staff, and that hospital leadership made

multiple efforts to counsel you about, and to discipline you for, such behavior. To

mention only the most recent actions, in September 2014 Dr. Paul Sidoti placed you

on probation for unprofessional behavior (among other reasons) and in November

2017 I issued a counseling letter to you for unprofessional conduct.” Dkt. No. 120-8.

The letter concluded, “the License Agreement between you and NYEE dated

April 20, 2015 will be terminated, effective June 30, 2019.”1 Dkt. No. 120-8.

The DSA was not immediately terminated. Dkt. No. 120-8.

The Third Amended Complaint alleges that in January 2019, “NYEE removed

all of the awards and diplomas of Robert Ritch, MD. These removed items consisted

of over 100 items including photographs with Presidents and Prime Ministers…” Dkt.

No. 91 at 4.

Then, the first administrative assistant named in the contract, Karen Cheifetz,

was replaced in September 2019 by a new administrative assistant, Brittany Roberts.

Dkt. No. 129-10.

After a little under a year, on May 21, 2020, Dr. Tsai sent Dr. Ritch a letter

claiming that, “the COVID-19 pandemic has had an unprecedented impact on the

financial health of every hospital within the Mount Sinai Health System…as such,

we have been forced to cut back…it is within that context of severe budgetary

1 June 30, 2019 is 159 days after January 22, 2019.

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constraints that we will be eliminating your part-time administrative assistant,

Brittany Roberts.” Dkt. No. 129-11.

However, on May 27, 2020, in an email, Nina Brodsky, the Senior Associate

General Counsel to the Mount Sinai Health System, offered a different justification:

“Ms. Roberts was a part-time employee of New York Eye and Ear and received NYEE

benefits. NYEE has the right to bar her from admission to the premises and has

decided to do so based on her disruptive behavior.” Dkt. No. 129-16.

On May 29, 2020, Dr Ritch wrote to Dr. Tsai complaining that the replacement

for Roberts, his third administrative assistant, Michelle Tapia, emailed him saying

she was told she “cannot start working in the hospital office until I complete the

onboarding process. [the Coordinator] also informed me that all applications are

currently on hold and they are not giving out any badges at this time… I also spoke

to the nurse at my doctor's office and was told that the immunizations forms will also

take about 3 weeks to complete due to the 2-step TB test.” Dkt. No. 119-1 at 179.

Dr. Tsai replied that, “all applications for onboarding at NYEE are currently

on hold due to the pandemic.” Dkt. No. 119-1 at 177.

According to the Third Amended Complaint, Tapia was “denied entry to NYEE

and Salvator Loiacana, the Vice President of Defendant Mt. Sinai…suggested that

Michelle Tapia could work from Starbucks.” Dkt. No. 91 at 6.

Meanwhile, on June 24, 2020, an attorney sent a draft complaint to the Mt.

Sinai legal department and to Dr. Ritch’s attorney Mr. Bythewood alleging that the

former administrative assistant Brittany Roberts, “was subjected to a hostile work

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environment and a discriminatory and retaliatory termination due to Plaintiff being

African-American and a hostile work environment due to her gender. Racial

derogatory remarks were uttered on an on-going continuous basis by Dr. Ritch.” Dkt.

No. 123-6.

On August 28, 2020, Dr. Tsai sent Dr. Ritch a letter purporting to terminate

the DSA for cause: “effective immediately, the New York Eye and Ear Infirmary of

Mount Sinai will terminate the above referenced agreement…for cause.” Dkt. No.

120-9.

The letter provided the following reasons: “First, Section 7(b)(v) of the

Agreement provides that the hospital may terminate the Agreement immediately

upon termination of the License Agreement. The Hospital terminated the License

Agreement effective June 30, 2019 by letter dated January 22, 2019. This alone allows

for immediate termination of the Agreement.” Dkt. No. 120-9.

The letter claims that “the Company is in material breach…in that you as a

Director have violated Hospital policies…” Dkt. No. 120-9.

The letter goes on to allege that Dr Ritch, “refused to cooperate with an

investigation into allegations made by your former assistant Brittany Roberts,” and

that Dr. Ritch “also made racial and derogatory comments to staff members, for

instance calling an African American employee ‘a monkey’ and a big and tall female

employee ‘a walrus’. Staff who worked with you described the environment as hostile

and unprofessional.” Dkt. No. 120-9.

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The letter further asserts that Dr Ritch “processed two applications for

sponsorship for J-1 Visas…you falsely claimed on these applications that the

personnel would be hired by the Hospital.” Dkt. No. 120-9 at 2.

That same day, on August 28, 2020, Dr. Tsai sent a letter to Dr. Patel, the

Chairman of the Medical Board for NYEE, repeating the same allegations in the

letter sent to Dr. Ritch and informing Dr. Patel that he had “summarily suspended

Dr. Ritch’s membership on the professional staff.” Dkt. No. 120-10.

In an affirmation in support of Plaintiff’s cross motion (for the first time and

without any additional context) Plaintiff’s attorney said, “with regard to outbursts by

Robert Ritch, MD., these outbursts can be explained as being due to his being a

Tourette Syndrome sufferer.” Dkt. No. 129-1 at 28, ¶131.

LEGAL STANDARDS

Rule 56(a) of the Federal Rules of Civil Procedure states that a “court shall

grant summary judgment if the movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A “genuine

issue” of a “material fact” is defined as a dispute that “may reasonably be resolved in

favor of either party,” and thus should be left to the finder of fact. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 250 (1986).

Summary judgment may not be granted unless all of the submissions taken

together “show[ ] that there is no genuine dispute as to any material fact.” Snead v.

City of New York, 463 F. Supp. 3d 386, 391 (S.D.N.Y. 2020)(Nathan, J.) citing Fed.

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R. Civ. P. 56(a). In other words, summary judgment is appropriate only “when the

record taken as a whole could not lead a rational trier of fact to find for the non-

moving party.” Smith v. Cty. of Suffolk, 776 F.3d 114, 121 (2d Cir. 2015).

A party may rely upon “the pleadings, depositions, answers to interrogatories,

and admissions on file, together with the affidavits” to “show that there is no genuine

issue as to any material fact...” Feurtado v. City of New York, 337 F. Supp. 2d 593,

596 (S.D.N.Y. 2004)(Gorenstein, M.J.) citing Fed. R. Civ. P. 56(c).

Only disputes over material facts will preclude the entry of summary

judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). On a motion for

summary judgment, “a fact is material if it might affect the outcome of the suit...”

Royal Crown Day Care LLC v. Dep't of Health & Mental Hygiene, 746 F.3d 538, 544

(2d Cir. 2014).

The moving party bears the burden of demonstrating the absence of a material

factual question, and in making this determination, the Court “must view all facts in

the light most favorable to the non-moving party.” See Eastman Kodak Co. v. Image

Techn. Servs., Inc., 504 U.S. 451, 456 (1992); Gemmink v. Jay Peak Inc., 807 F.3d.

46, 48 (2d Cir. 2015). In evaluating cross-motions for summary judgment, each motion

must be examined “on its own merits,” and “all reasonable inferences must be drawn

against the party whose motion is under consideration.” Vugo, Inc. v. City of New

York, 931 F.3d 42, 48 (2d Cir. 2019).

If the moving party has asserted facts showing that the non-movant's claims

cannot be sustained, “the party opposing summary judgment may not merely rest on

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the allegations or denials of his pleading; rather his response, by affidavits or

otherwise as provided in the Rule, must set forth specific facts demonstrating that

there is a genuine issue for trial.” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009).

“[C]onclusory statements, conjecture, and inadmissible evidence are insufficient to

defeat summary judgment.” Ridinger v. Dow Jones & Co. Inc., 651 F.3d 309, 317 (2d

Cir. 2011). The same is true for “mere speculation or conjecture as to the true nature

of the facts.” Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010).

Finally, where “the nonmoving party bears the burden of proof at trial,

summary judgment is warranted if the nonmovant fails to make a showing sufficient

to establish the existence of an element essential to its case.” Feurtado v. City of New

York, 337 F. Supp. 2d 593, 596 (S.D.N.Y. 2004)(Gorenstein, M.J.) citing Nebraska v.

Wyoming, 507 U.S. 584, 590 (1993).

DISCUSSION

Plaintiffs claim 1) Defendants did not properly terminate either the LA or the

DSA, 2) that the DSA was breached when Dr. Ritch (not the LLC) was paid the

contractual fee, 3) that Defendants breached the DSA in preventing his

administrative assistant from entering the premises, 4) that NYEE violated the LA

and DSA in removing his diplomas and name from the door, 5) negligent infliction of

emotional distress, and 6) defamation. Dkt. No. 91.

Not one of these claims withstands scrutiny.

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Because the Plaintiffs have not come forward with specific facts showing there

is a genuine issue for trial, and because “the record taken as a whole could not lead a

rational trier of fact to find” for the Plaintiffs, Plaintiffs’ cross motion is denied.

Defendants, on the other hand, claim they had a right to terminate the LA

upon sufficient notice, and the right to terminate the DSA upon termination of the

LA. Regardless of whether Plaintiffs’ factual allegations are true, Defendants still

prevail. Therefore, Defendants’ motion for summary judgment is granted.

1. SDNY Local Rule 56.1

Rule 56.1 requires the moving party to submit a statement of undisputed

material facts warranting summary judgment, and the opposing party must submit

a corresponding statement responding to each item set forth in the movant’s

statement. Local Rule 56.1.

Plaintiffs did not submit a corresponding statement responding to each item

set forth in Defendants’ Rule 56.1 Statement and their failure to do so could warrant

the facts in Defendants’ Rule 56.1 Statement be deemed admitted. See Local Rule

56.1(c) (“[e]ach numbered paragraph in the statement of material facts set forth in

the statement required to be served by the moving party will be deemed to be

admitted for purposes of the motion unless specifically controverted by a

correspondingly numbered paragraph in the statement required to be served by the

opposing party.”). Although Plaintiffs' counsel submitted an Affirmation in Support

of Plaintiffs' Opposition to Defendants’ Motion which addresses allegations contained

in Defendants’ Rule 56.1 Statement (Bythewood Aff. ¶¶44-72), it is not based on

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personal knowledge. Fed. R. Civ. P. 56(c)(4); see Holtz v. Rockefeller & Co., Inc., 258

F.3d 62, 74 (2d Cir. 2001) (“Where, as here, the record does not support the assertions

in a Local Rule 56.1 statement, those assertions should be disregarded and the record

reviewed independently.”); see also Local Rule 56.1(d) (“[e]ach statement by the

movant or opponent pursuant to Rule 56.1(a) and (b), including each statement

controverting any statement of material fact, must be followed by citation to evidence

which would be admissible, set forth as required by Fed. R. Civ. P. 56(c).”).

Nevertheless, rather than deem the entire 56.1 statement to be admitted, the

Court concludes that it would be in the best interest of justice to review the entire

record and decide the motion and the cross motion on the merits. See Elohim EPF

USA, Inc. v. 162 D & Y Corp., No. 19-CV-2431 (AJN), 2021 WL 2292682, at *1

(S.D.N.Y. June 4, 2021)(“The Second Circuit has expressed a strong ‘preference for

resolving disputes on the merits.’”) citing New York v. Green, 420 F.3d 99, 104 (2d

Cir. 2005).

2. LA Was Validly Terminated

Plaintiff contends that the LA was not validly terminated because, “it is clear

it was the intent of the Defendants to terminate the License Agreement for

cause…default is not defined in the License Agreement…consequently the License

Agreement was never terminated.” Dkt. No. 129-1 at 27.

The License Agreement states that, “notwithstanding anything herein to the

contrary, each party hereto shall be entitled to terminate this Agreement without

cause upon one hundred twenty (120) days prior written notice…” Dkt. No. 129-8,

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Sec. 2(a). The language here has “a definite and precise meaning, unattended by

danger of misconception” and is thus unambiguous. See Greenfield v. Philles Recs.,

Inc., 98 N.Y.2d 562, 569 (N.Y. 2002); see also Thor Equities, LLC v. Factory Mut. Ins.

Co., 531 F. Supp. 3d 802, 807 (S.D.N.Y. 2021).

On January 22, 2019, Dr. Tsai hand-delivered a letter to Dr. Ritch that

terminated the License Agreement “effective June 30, 2019.” Dkt. No. 120-8. This is

159 days advance notice, well in excess of the 120 days required by the Licensing

Agreement. See Dkt. No. 129-8.

In the SDNY, when a contract is terminable “without cause” courts will

generally not delve into the actual reason for termination. In a commercial dispute

involving Lockheed Martin, the Court explained that where “a party has an absolute,

unqualified right to terminate a contract on notice pursuant to an unconditional

termination clause, that party may do so without court inquiry into whether the

termination was activated by an ulterior motive.” See Lockheed Martin

Transportation Sec. Sols. v. MTA Cap. Constr. Co., No. 09 CIV. 4077 (PGG), 2014 WL

12560686, at *31 (S.D.N.Y. Sept. 16, 2014)(internal quotations cleaned up) citing Big

Apple Car, Inc. v. City of New York, 204 A.D.2d 109, 111 (1st Dept. 1994); see also

Schwartz v. Fortune Magazine, 89 F. Supp. 2d 429, 434 (S.D.N.Y. 1999) (“[T]he court

does not inquire into why a party exercised his right to terminate a contract when

the contract is terminable without cause.”).

So too here. The fact that the Defendants offered explanations for exercising

their unilateral right to terminate the contract does not mean that the Defendants

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needed to establish that such reasons amounted to a default under the agreement.

Both Parties bargained for a symmetrical right to terminate the contract, without

cause, upon 120 days’ notice. Schron v. Troutman Sanders LLP, 20 N.Y.3d 430, 436,

(N.Y. 2013)(“a written agreement that is complete, clear and unambiguous on its face

must be enforced according to the plain meaning of its terms.”).

Defendants were under no obligation to give any reason for terminating the

contract. The fact that they chose to do so does not transform the January 2019 letter

into an attempt to terminate for cause. Thus, the truth or untruth of the allegations

made in the 2019 letter is entirely irrelevant. The Court declines to weigh in on their

veracity.

In his deposition, Dr. Ritch claimed he “could not recall” whether he received

the letter from Dr. Tsai. Dkt. No. 119-1 at 16. However, in an attachment to his own

Cross Motion for Summary Judgment, Dr. Ritch included a letter he sent to Dr. Tsai

on February 3, 2019 that said, “I am writing in response to your letter of January 22,

2019 which was hand delivered to me…” Dkt. No. 129-27.

Thus, Dr. Ritch admitted he was delivered “written notice” of the License

Agreement’s termination. Because the letter was provided well in advance of Section

2’s 120-day notice requirement, the Court rules that the License Agreement was

effectively terminated on June 30, 2019.

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3. DSA Was Validly Terminated

New York contract law requires that interrelated agreements be read together

“in harmony.” See Bombay Realty Corp. v. Magna Carta, Inc., 100 N.Y.2d 124, 127

(2003); see also Liberty USA Corp. v. Buyer’s Choice Ins. Agency LLC., 386 F. Supp.

2d 421, 425 (S.D.N.Y. 2005)(“In New York, it is the general rule that written contracts

executed simultaneously and for the same purpose must be read and interpreted

together.”).

Courts in this circuit have recognized that an event of default under one

contract could be a default under a different contract. See In re Calpine Corp., No.

05-60200 (BRL), 2007 WL 4326738, at *10 (S.D.N.Y. Nov. 21, 2007)(“an Event of

Default includes a “default by the Company in the payment of principal of any bond,

debenture, note…”); Textron Fin. Corp. v. Plausteiner, No. 2:08-CV-254, 2009 WL

2516117, at *3 (D. Vt. Aug. 11, 2009)(“the borrower’s default under another

agreement will constitute an event of default under the LSA”); Commerzbank AG v.

Bank of New York Mellon, No. 15 CIV. 10029 (GBD), 2017 WL 1157278, at *4

(S.D.N.Y. Mar. 21, 2017)(“ the Indentures incorporate the SSAs, which define Events

of Default to include a material breach of the SSAs by the Servicer. Plaintiff has

adequately alleged the occurrence of servicer defaults.”).

The 2019 letter terminating the LA did not purport to terminate the DSA, even

though it could have, because the LA stated, “Hospital shall have cause for

termination in the event of…termination of the License Agreement.” See Dkt. No.

129-7, Sec. 7(b).

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Nevertheless, there is no provision in either the Licensing Agreement or the

Director Services Agreement requiring that a notice of default be sent within any

circumscribed period of time.

The Court will not “read into the contract, as an implied term, a ‘reasonable

time’ provision…that is inconsistent with the express terms of the contract.” See Grey

v. Fed. Deposit Ins. Corp., No. 88-CV-7452 (THK), 1999 WL 587921, at *5 (S.D.N.Y.

Aug. 5, 1999). Thus, NYEE was permitted the choice to delay exercising its right to

terminate the DSA. Even though it chose to delay the exercise of that right, NYEE

legally possessed the right to terminate the DSA from the moment of the termination

of the LA on June 30, 2019, until it did so on August 28, 2020.

The Parties were free to bargain that termination of the Licensing Agreement

would permit termination of the Director Services Agreement. The fact the two

agreements were signed on the same day only highlights the interconnectedness

between the two contracts.

Thus, even setting aside the myriad allegations made in the August 2020

letter, NYEE had the unilateral right to terminate the DSA as soon as the LA was

terminated in June 2019. The fact that NYEE did not do so immediately did not waive

that right. Thus, they were free to exercise their right to terminate in August 2020.

Section 16 of the DSA, “Notices” states, “Any notice required or desired to be

given hereunder shall be in writing and delivered personally, by nationally

recognized overnight delivery service or by certified mail, return receipt requested,

postage prepaid.” Dkt. No. 129-7. In his deposition, Dr. Ritch admitted he received

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the August 28, 2020 letter and that it informed him the DSA was terminated. Dkt.

No. 119-1 at 53, Tr. p. 177 and 181. The letter was sent via overnight mail in

accordance with the contract. Dkt. No. 120-9. Therefore, the DSA was properly

terminated on August 28, 2020.

Hence, NYEE was under no obligation to prove the truth of the allegations in

the letter and the Court declines to consider them.

4. No Breach of Contract for Paying Dr. Ritch Directly

The Plaintiff alleges that “pursuant to the Director’s Service Agreement,

plaintiff Robert Ritch, M.D., LLC is required to be paid One Hundred Fifty-Three

Thousand Dollars each year. NYEE and Mt Sinai were advised that no record of any

such payment was found to which there was no response.” Dkt. No. 91 at ¶¶ 18-19.

Based upon this alleged breach, Plaintiff claims this entitles him to $153,500

each year since 2015.

But this claim is baseless and borderline frivolous. Dr. Ritch cannot claim

damages because the checks were paid directly to him rather than to the LLC. See

Harsco Corp. v. Segui, 91 F.3d 337, 348 (2d Cir. 1996)(holding that under New York

law a breach of contract claim requires “(1) the existence of an Agreement, (2)

adequate performance of the contract by the plaintiff, (3) breach of contract by the

defendant, and (4) damages.”); see generally Holborn Oil Trading Ltd. & Interpetrol

Bermuda Ltd., 774 F. Supp. 840, 844 (S.D.N.Y. 1991)(“New York law also provides

for piercing the veil when a corporate entity is completely controlled by another and

has no separate will of its own.”).

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In fact, Dr. Ritch admits that he was paid every penny. Dkt. No. 119-1 at 6, Tr.

p. 22 (“Dr. Ritch, were you paid or was the LLC paid the $153,000 -- $153,500 a year?

A. Yes. MR. BYTHEWOOD: Wait. With regard to this, or with regard to -- He wants

to know if the LLC was paid $153,000 a year. THE WITNESS: The checks were paid.

MR. BYTHEWOOD: He wants to know if the LLC was paid this money. The answer

is yes or no. THE WITNESS: No. It was paid to me. Q. Was the $153,000 payment

made to you instead of to the LLC? A. Yes.”).

Further, NYEE’s business records show that Dr. Ritch was, in fact, paid the

correct amount. Dkt. Nos. 137-1, 137-2, 137-3 (showing Dr. Ritch and the LLC were

paid a combined total of $1,527,441.77 from September 2017 to August 2020).

Thus, since Dr. Ritch was actually paid, this does not amount to a breach of

the contract, and certainly not a breach that resulted in any damages.

5. No Breach of Contract for Delay in Onboarding Administrative Assistant

In Section 3 of the DSA, “Services to be Provided” the contract says, “The

Hospital also agrees to offer Karen Cheifetz a part-time employment opportunity, for

twenty-two and one-half hours per week, so that Ms. Cheifetz may provide Company

with administrative assistance related solely to Company’s services hereunder. The

Hospital shall provide Ms. Cheifetz, or in the event Ms. Cheifetz declines the

Hospital’s offer of employment or ceases being a Hospital employee, a replacement

administrative assistant with suitable office space, reasonably determined by the

hospital.” Dkt. No. 129-7, Sec. 3(a).

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In the DSA, the Parties also agreed that “the terms of Company’s engagement

are governed by the policies of Hospital, including specifically, the Medical Staff

Bylaws and Rules and Regulations of the Medical Staff of Hospital as amended from

time to time.” Dkt. No. 129-7, Sec. 1.

Plaintiff alleges that this provision of the contract was violated when NYEE

denied his third administrative assistant, Michelle Tapia, access to the building in

June 2020. He also claims that NYEE’s dismissal of his second administrative

assistant, Brittany Roberts, without his input or permission, due to alleged COVID-

19 “budgetary constraints” violated the DSA.

Numerous courts have held that COVID-19-related difficulties, especially

financial burdens caused by COVID-19, do not excuse the failure to perform under a

contract. See LMREC III Note Holder, Inc. v. Hudson EFT LLC, No. 20-CV-5063

(KMK), 2022 WL 3997017, at *8–9 (S.D.N.Y. Sept. 1, 2022)(“A number of courts have

rejected the impossibility defense as an excuse for [parties] not performing

contractual obligations ... during the COVID-19 pandemic.”) citing A/R Retail LLC v.

Hugo Boss Retail, Inc., 149 N.Y.S. 3d 808, 826 (N.Y. Sup. Ct. May 19, 2021); see also

Gap Inc. v. Ponte Gadea New York LLC, 524 F. Supp. 3d 224, 237–38 (S.D.N.Y. 2021)

(“The fact that its continued performance may be burdensome, even to the extent of

insolvency or bankruptcy ... does not render [the plaintiff’s] performance objectively

impossible under New York law.”); CW A&P Mamaroneck LLC v. PFM WC-1, LLC,

162 N.Y.S.3d 924 (N.Y. Sup. Ct. Mar. 16, 2022) (“In recent cases, the majority of

decisions have rejected attempts to assert the doctrines of frustration of purpose or

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impossibility of performance based on government restrictions arising from the

COVID-19 pandemic.”).

Thus, even if the financial strength of the Mount Sinai Health System was

weakened by COVID-19 (a dubious assertion given the deluge of government funds

allocated during the pandemic), NYEE had no right to renege on its commitment to

provide an administrative assistant to Dr. Ritch and his LLC.

However, the Plaintiffs have failed to introduce specific facts that create a

genuine dispute of any issue that would establish a contract violation here. Even

assuming all the facts as alleged by Dr. Ritch are true, the hospital bargained for the

right to “reasonably determine[]” the “suitable office space” as well as to require Dr.

Ritch’s third administrative assistant to comply with “the policies of Hospital”. Dkt.

No. 129-7, Sec. 1.

Thus, it was not a breach of the contract to suggest that the administrative

assistant temporarily work remotely from Starbucks. The fact that there would be a

delay in providing the administrative assistant with a badge to enter the hospital was

not a breach of the contract.

The DSA explicitly details that any administrative assistant would be a

“Hospital employee” rather than an employee of Dr. Ritch’s LLC. Section 3 detailing

that the administrative assistant would be a “hospital employee” must be read in

harmony with Section 1’s incorporation of the “policies of the Hospital”. Whitestone

Constr. Corp. v. Yuanda USA Corp., No. 1:20-CV-1006-GHW, 2021 WL 5234395, at

*5 (S.D.N.Y. Nov. 9, 2021)(“[T]he intent of the parties must be found within the four

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corners of the contract, giving a practical interpretation to the language employed

and reading the contract as a whole.”); Beal Sav. Bank v. Sommer, 8 N.Y.3d 318, 324,

(N.Y. 2007)(“a contract should be read as a whole, and every part will be interpreted

with reference to the whole.”).

Hence it is inevitable that there would be a short period of onboarding, and

that during a pandemic, this onboarding process would be delayed. Indeed, in an

exhibit submitted by the Plaintiff, the administrative assistant herself explained that

“I also spoke to the nurse at my doctor’s office and was told that the immunization

forms will also take about 3 weeks to complete due to the 2-step TB test.” Dkt. No.

119-1 at 179.

Given that the contract with Dr. Ritch’s LLC was terminated on August 28,

2020, the short delay in onboarding the new administrative assistant is not a breach

of the DSA. Perhaps if the DSA were not terminated, and the onboarding process

stretched on, it would eventually amount to a refusal to provide Dr. Ritch with an

assistant and a violation of Section 3 of the DSA. But once the DSA was validly

terminated, NYEE no longer had any obligation to onboard a new administrative

assistant.

Dr. Ritch has provided no evidence to the contrary aside from his own

conclusory allegations that other, younger doctors were permitted to onboard their

employees. See Deebs v. Alstom Transp., Inc., 346 F. App’x 654, 656 (2d Cir. 2009)

(affirming district court’s decision granting defendant’s summary judgment where

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the only evidence cited to by plaintiffs was their own self-serving testimony). At this

point in the litigation, after three years of discovery has concluded, this is not enough.

6. No Breach of Contract for Removing Personal Items

The Third Amended Complaint alleges that in January 2019, “NYEE removed

all of the awards and diplomas of Robert Ritch, MD. These removed items consisted

of over 100 items including photographs with Presidents and Prime Ministers…” Dkt.

No. 91 at 4.

There is nothing in either the License Agreement or the Director Services

Agreement that expressly or impliedly obligates the Defendants to permit Dr. Ritch

to promote his diplomas and other achievements at NYEE.

In fact, the License Agreement explicitly states, “the Licensor shall be solely

responsible for maintenance and repair of the Medical Space.” Dkt. No. 129-8, Sec.

1(d).

As NYEE was “solely responsible” for maintenance of the Medical Space, if the

contract provides one of the Parties the right to decide what goes on the walls, it

would be the Defendants.

Thus, Plaintiffs have not “set forth specific facts demonstrating that there is a

genuine issue for trial.” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). Even if the

Court adopted Plaintiffs’ version of events, Plaintiff cannot prevail. Therefore,

Defendants are entitled to summary judgment.

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7. NIED Claim Fails Because Plaintiff Does Not Allege a Fear of Physical

Danger

Dr. Ritch also asserts a claim for negligent infliction of emotional distress. Dkt.

No. 91 at 13, ¶90-103. Plaintiff alleges that “by the actions and omissions of the

defendants, Robert Ritch, MD has suffered severe stress and medical condition

aggravation.” Dkt. No. 91 at 13.

To prevail on a claim for negligent infliction of emotional distress, Plaintiff

must allege that he “was owed a duty, that the defendant breached the duty, and that

the plaintiff suffered emotional injury as a result. In addition, the defendant’s conduct

must have unreasonably endangered the plaintiff’s physical safety.” See Fisk v.

Letterman, 424 F. Supp. 2d 670, 676 (S.D.N.Y. 2006).

Many courts have held that it is critical to plead a “fear of physical safety” to

prevail on an NIED claim. See Francis v. Kings Park Manor, Inc., 992 F.3d 67, 81 (2d

Cir. 2021) at fn 57 (“To establish the fourth element, the plaintiff generally must

plead that the breach endangered his physical safety or caused him to fear for his

physical safety.”); Goldrich v. Masco Corp., No. 22-CV-3769 (KMK), 2023 WL

2649049, at *9–10 (S.D.N.Y. Mar. 27, 2023); Brevil v. County of Rockland, No. 15-CV-

5103 (VB), 2017 WL 4863205, at *9 (S.D.N.Y. Oct. 26, 2017) citing Acquista v. New

York Life Ins. Co., 285 A.D.2d 73, 83 (1st Dep’t 2001) and Green v. Leibowitz, 118

A.D.2d 756, 757 (2d Dep’t 1986).

Nowhere does Dr. Ritch make any allegation that NYEE endangered his

physical safety. In fact, Dr. Ritch admitted that he did not have any fear for his

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physical safety. Dkt. No. 119-1 at 58, Tr. p. 196 (“No. What are they gonna do, knife

me? Yeah it never occurred – I mean, I didn’t think it was a physical problem.”).

Therefore, Plaintiffs have failed to “make a showing sufficient to establish the

existence of an element essential to its case.” Feurtado v. City of New York, 337 F.

Supp. 2d 593, 596 (S.D.N.Y. 2004)(Gorenstein, M.J.) citing Nebraska v. Wyoming,

507 U.S. 584, 590 (1993).

8. Defamation Claim Fails Because Dr. Tsai and Dr. Patel Are Shielded by

the Qualified Privilege for Common Interest Communications

Plaintiff also alleges defamation by libel against Dr. Tsai. See Dkt. No. 91 at

19 ¶ 152-157.

On August 28, 2020, Dr. Tsai sent a letter to Dr. Patel, the Chairman of the

Medical Board for NYEE, repeating the same allegations in the letter sent to Dr.

Ritch and informing Dr. Patel that he had “summarily suspended Dr. Ritch’s

membership on the professional staff.” Dkt. No. 120-10. It is this letter that Plaintiff

claims included falsities that damaged his reputation. See Dkt. No. 91 at 19 ¶ 152-

157.

New York affords a qualified protection to even defamatory statements if they

are made in good faith and said from one person to another in which both have a

“common interest”. See Stillman v. Ford, 22 N.Y.2d 48, 53, 238 N.E.2d 304 (1968) (“A

communication made by one person to another upon a subject in which both have an

interest is protected by a qualified privilege.”); Ramsaran v. Abraham, No. 15-CV-

10182 (JPO), 2017 WL 1194482, at *5 (S.D.N.Y. Mar. 30, 2017)(“New York affords

qualified protection to defamatory ‘communication[s] made by one person to another

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upon a subject in which both have an interest,’ the so-called common interest

privilege…is simply stated, ‘a bona fide communication made upon any subject

matter in which the party communicating has an interest or duty is protected by a

qualified privilege when it is made to a person having a corresponding interest or

duty.’”)(citations omitted).

New York appellate courts have previously held that statements between an

organization’s board members or between an employee’s supervisors are entitled to

the common interest privilege. See Liberman v. Gelstein, 80 N.Y.2d 429, 430 (N.Y.

1992)(“statement to a colleague on the board of governors [of a tenant

association]…although slanderous per se, falls within the “common interest”

privilege as a communication made by one person to another upon a subject in which

both have an interest.”); Bayer v. City of New York, 60 A.D.3d 713, 714 (2nd Dept.

App. Div. 2009)(“the alleged defamatory statement was protected by a qualified

privilege since [Defendant] made it to other persons who had an interest in his

assessment of the plaintiff’s work behavior.”)

So too here. Dr. Tsai and Dr. Patel clearly share a common interest. Dr. Patel

is the Chairman of the Medical Board of NYEE. Dkt. No. 120 at ¶ 14. Dr. Tsai is the

President of NYEE. Dkt. No. 120 at ¶ 1. They absolutely share an interest in whether

one of NYEE’s physicians has acted unprofessionally. Indeed, evaluating the doctors’

behavior is their job. Thus, regardless of whether any of the accusations are true, in

the absence of any evidence of actual malice, the statements are shielded by the

common interest qualified privilege.

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Therefore, the defamation claim cannot stand.

9. The Tortious Interference Claim Fails Because NYEE Cannot Interfere

With Its Own Contract

Plaintiff alleges that NYEE engaged in tortious interference when it

terminated his second assistant Brittany Roberts and when it temporarily denied his

third assistant Michelle Tapia access to the hospital. Dkt. No. 91 at ¶ 104-115.

But one cannot tortiously interfere with her own contract. See Maragh v.

Roosevelt Island Operating Corp., No. 16-CV-7530 (JMF), 2018 WL 6573452, at *5

(S.D.N.Y. Dec. 13, 2018) (“By definition, no tortious interference claim could lie

against [Defendant], which is manifestly not a third party to the relationship…”);

Ashby v. ALM Media, LLC, 110 A.D.3d 459 (1st Dept. App. Div. 2013)(“It is well

established that only a stranger to a contract, such as a third party, can be liable for

tortious interference with a contract.”).

Therefore, given that the contractual relationship that Plaintiff claims was

tortiously interfered with is the same DSA to which the LLC and NYEE were

counterparties, NYEE cannot tortiously interfere with the DSA. NYEE cannot

tortiously interfere with its own contract. In the absence of any allegation that Dr.

Tsai acted outside the scope of his authority as President of NYEE, the tortious

interference claim also fails.

CONCLUSION

The Parties bargained for a right to terminate the License Agreement, without

cause, upon 120 days’ notice. This notice was given, and the License Agreement was

effectively terminated. Because the other contract, the Director Services Agreement,

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explicitly included termination of the License Agreement as an event of default, that

agreement was also effectively terminated. With both agreements discontinued, the

Parties have no further obligations to each other. Because of this, as well as because

the other claims are legally defective, Plaintiffs have failed to establish that there

exists any “genuine issue as to any material fact”. See Fed. R. Civ. P. 56(c); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Thus, the Defendants are entitled

to a judgment as a matter of law. Id.

Thus, Plaintiffs’ Cross Motion for Summary Judgment is DENIED, and

Defendants’ Motion for Summary Judgment is GRANTED.

The Clerk of the Court is respectfully requested to close the case.

SO ORDERED.

DATED: New York, New York

September 29, 2023 / E Willo

JENNIFER E. WILLIS

United States Magistrate Judge

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