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FILED: ALBANY COUNTY CLERK 11/21/2022 12:32 PM INDEX NO. 908797-22
NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/21/2022
STATE OF NEW YORK
SUPREME COURT COUNTY OF ALBANY
ANESTHESIA GROUP OF ALBANY, P.C.,
VERIFIED PETITION
Petitioner, TO STAY ARBITRATION
PURSUANT TO CPLR 7503
-- against --
Index No.
CHRISTOPHER FLOOD, M.D., MANINDER
GUJRAL, M.D., HUGH JACOBS, M.D.,
JOHN-PATRICK PYTHON, M.D., JAMES
SONN, M.D., AND DERRICK WURL, M.D.,
Respondents.
Petitioner, Anesthesia Group of Albany, P.C., by and through its attorneys, Gleason Dunn
Walsh & O'Shea, as and for its Verified Petition pursuant to CPLR Section 7503, respectfully
alleges as follows:
1. Petitioner is a New York professional corporation with a usual place of business at
1450 Western Avenue, Suite 102, Albany, New York.
2. Upon information and belief, Respondent Christopher Flood, M.D. is a resident of
Rensselaer County and is a former shareholder and employee of Petitioner.
3. Upon information and belief, Respondent Maninder Gujral, M.D. is a resident of
Albany County and is a former shareholder and employee of Petitioner.
4. Upon information and belief, Respondent Hugh Jacobs, M.D. is a resident of
Albany County and is a former shareholder and employee of Petitioner.
5. Upon information and belief, Respondent John-Patrick Python, M.D. is a resident
of Albany County and is a former shareholder and employee of Petitioner.
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6. Upon information and belief, Respondent James Sonn, M.D. is a resident of Albany
County and is a former shareholder and employee of Petitioner.
7. Upon information and belief, Respondent Derrick Wurl, M.D. is a resident of
Saratoga County and is a former shareholder and employee of Petitioner.
8. This action is brought pursuant Article 75 of the CPLR to stay an arbitration
commenced by Respondents by the filing of a Demand for Arbitration with the American
Arbitration Association, dated November 1, 2022, because there is not a valid agreement to
arbitrate Respondents' claim.
9. Venue for this proceeding is properly in Albany County under CPLR § 7502(a)(i)
as Petitioner does business and is located in Albany County, all of the Respondents were required
to perform work in Albany County at all times relevant herein, and, upon information and belief,
several of the Respondents reside in Albany County.
10. This Court has jurisdiction over this matter pursuant to CPLR § 7 502 as Petitioner
has not participated in the arbitration in any meaningful way and has not made or been served with
an application to compel arbitration.
11. This Court must stay the arbitration demanded by Respondents as fully explained
herein because the underlying dispute alleged by Respondents simply does not arise pursuant to
an agreement which includes a valid agreement to arbitrate.
12. This matter arises from the dissatisfaction among Respondents -- each a former
shareholder of Petitioner -- regarding the total amount of distributions they received from the
Petitioner medical practice for the year ending December 31, 2021.
13. Respondents were shareholders of Petitioner Anesthesia Group of Albany, P.C.
who retired as shareholders of the practice effective December 31, 2021.
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14. Respondents do not allege a dispute by and between themselves and their former
shareholder colleagues that relates to or arises from the terms of the Shareholder Agreement.
15. Similarly, there is no dispute regarding Respondents status as former shareholders
or the compensation Respondents received and/or are receiving as the result of their resignation as
shareholders in exchange for their shares in the Petitioner company.
16. On or about November 1, 2022, Respondents filed a Demand for Arbitration, dated
November 1, 2022, with the American Arbitration Association. A copy of Respondents' Demand
for Arbitration is attached hereto as Exhibit A.
17. Respondents' Demand for Arbitration relies upon an arbitration prov1s10n
contained in the Shareholder Agreement which was attached as Exhibit A to the Demand for
Arbitration and is attached hereto within Exhibit A. (See Shareholder Agreement, at p. 11).
18. The arbitration provision cited by Respondents expressly limits the agreement to
arbitrate between Petitioner and Respondents to "any dispute arising under this [Shareholder]
[A]greement, its terms or performance." (See Shareholder Agreement, at p. 11).
19. The question presented by Respondents in their Demand for Arbitration does not
arise under the Shareholder Agreement, its terms or performance.
20. Respondents do not allege and there is no dispute that the distributions made by
Petitioner to its shareholders were improperly calculated.
21. Rather, Respondents seek a determination as to whether Petitioner's accounts
receivable were properly collected for the year of 2021. (See Demand for Arbitration at Exhibit
A.)
22. The Shareholder Agreement does not address the collection methods and practices
employed by Petitioner to recover accounts receivable.
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23. As such, the subject matter of Respondents claim does not arise within the scope of
the arbitration agreement found in the Shareholder Agreement.
24. Respondents do not allege that any other agreement can serve as the basis of their
entitlement to arbitration.
25. As a result of Respondents' improper reliance upon the Shareholder Agreement for
their claim, Respondents have failed to properly assert that an agreement to arbitrate exists between
the parties on the matter of Petitioner's collection practices.
26. As a result of Respondents' failure to identify a proper arbitration agreement, the
present dispute is not suitable for arbitration.
27. Respondents have raised only the single dispute identified hereinbefore, and
because that controversy is not properly arbitrable, Respondents' entire controversy is unsuitable
for arbitration.
28. Since the dispute is not subject to an agreement to arbitrate, an application to this
court for a stay of arbitration is proper under CPLR 7503 and applicable case law.
WHEREFORE, Petitioner respectfully requests that an order be made and entered as follows:
a) vacating and otherwise declaring a nullity the Demand for Arbitration as heretofore filed
by Respondent (Exhibit A); and
b) permanently staying the arbitration sought in the aforementioned Demand upon the
grounds that the present dispute is not one for which an agreement to arbitrate between the
parties exists; and
c) enjoining the Respondents from pursuing further arbitration of the present dispute under
the shareholder agreement referenced in Respondents' Demand for Arbitration; and
d) granting such other and further relief as to the Court may seem just and proper.
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Dated: Albany, New York
November 21, 2022
Yours, etc.
&O'SHEA
By:
Email: jcalareso@gdwo.net
To: Daniel Hurteau, Esq.
Attorney for Respondents
Nixon Peabody
677 Broadway, 10th Floor
Albany, NY 12207
Tel: (518) 427-2652
Fax: (866) 947-0687
Email: dhurteau@nixonpeabody.com
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VERIFICATION
STATEOFNEWYO./ RK jss.:
COUNTY O F ~ : - - )
/ ~A~A-rOG1A-
LANCE WILKINS, M.D., being duly sworn, deposes and says that he is a Shareholder and
President of Anesthesia Group of Albany, P.C., the business entity named as the Petitioner in the
within action; that he has read the foregoing VERIFIED PETITION and knows the contents
thereof; and that the same is true to his own knowledge, except as to the matters therein stated to be
alleged upon information and belief, and as to those matters, he believes them to be true.
LANCEWILKINS, M.D. ,,,,.-
Swpi;p. ,to before me, this
O tlt( day of November, 2022.
NOTARY PUBLIC MICHELE MARIE WICKS
Notary Public, State of New York
No. 01Wl6319119
.Qualified in Schenectady County
Commission Expires 2/09/23
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EXHIBIT A
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e AMERICAN ARBITRATION AsSOCIATJON•
jAAA Case No. 01-22-0004-6185
COMMERCIAL ARBITRATION RULES
DEMAND FOR ARBITRATION
For Consumer or Employment cases, please visit www.adr.org for appropriate forms.
You are hereby notified that a copy of our arbitration agreement and this demand are being filed with the American Arbitration Association with
a request that it commence administration of the arbitration. The AAA will provide notice of your opportunity to file an answering statement.
Name of Respondent: Anesthesia Group of Albany, P.C. Name of Representative (if known):
Tammy Cumo
Address: 1450 Western Avenue, Suite 102 Name ofFirm (if applicable):
Gleason, Dunn, Walsh & O'Shea
Representative's Address:
40 Beaver Street
City: Albany I State:NY I Zip Code: 12203 City:Albany I State: NY I Zip Code: 12207
Phone: I Fax: Phone: 518-599-7573 I Fax: 518-432-5221
E-mail Address: E-Mail Address: tcumolm!!dwo.net
The named claimant, a party to an arbitration agreement which provides for arbitration under the Commercial Rules of the American Arbitration
Association, hereby demands arbitration.
Brief Description of the Dispute:
The Claimants are all Shareholders in AGA that retired at the end of 2021. As a result, each (along with the
other Shareholders) was entitled to a distribution based on 2021 collections. The distribution received by the Shareholders at the end of 2021 was
inappropriate, inequitable and inadequate. An amount of approximately $4.2 million should have been included in the distribution for all
Shareholders but was not because of a failure on the part of AGA to collect AR. The six retiring Shareholders bringing this arbitration are entitled
(SEE EXHIBIT A ATTACHED.)
to share in approximately $1.7 million toward their distributions at the end of 2021.
Dollar Amount of Claim:$1.7 Million
Other Relief Sought:0 Attorney's Fees0 Interest0 Arbitration Costs
D Punitive/Exemplary
Amount Enclosed: $ In Accordance with Fee Schedule: D Flexible Fee Schedule 0Standard Fee Schedule
An attorney that regularly handles civil
Please describe the qualifications you seek for arbitrator(s) to be appointed to hear this dispute:
commercial litigation and shareholders distribution issues.
Hearing Locale Requested: Albany, New York
(check one) â–¡ Requested by Claimant0 Locale provision included in the contract
Estimated time needed for hearings overall:
3-5 days
Respondents:
Type of Business:
Claimants: Anesthesiologists Respondent: Anesthesiology Office
Are any parties to this arbitration, or their controlling shareholder or parent company, from different countries than each other?
No.
Signature (may be signed by representativi,;}--9-,....ax1(;;:.,__ ___
Date: 11/1/2022
Name of Claimants: Maninder Guiral, Christopher Flood,.Hugh Jacobs, John-Patrick Pvthon, James Sonn, and Derrick Wurl
Address (to be used in connection with this case):
677 Broadway
City: Albany I State: New York IZip Code: 12207
Phone: 518-427-2652 Fax:
E-mail Address:dhurteau@nixonpeabodv.com
Name of Representative:Daniel Hurteau
Name ofFirm (if applicable):
Nixon Peabody, LLP
677 Broadway, I 0 th Floor
Representative's Address:
City: Albany I State:
New York I Zip Code: 12207
Phone No.: 518-427-2652 Fax No.:866-94 7-0687
Email Address: dhurteau@nixonpeabody.com
To begin proceedings, please file online at www.adr.org/fileonline. You will need to upload a copy of this Demand and the
Arbitration Agreement, and pay the appropriate fee.
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SHAREHOLDER AGREEMENT
This Agreement, effective the 1st day of July, 2009 (the "Record Date"), by
and between Peter G. Andriakos, M.D., Paul Chalmers, M.D., Sanjay Chaudhry, M.D., Paul
Danker, M.D., Nimesh Desai, M.D., Christopher Flood, M.D., Lewis Glaser, D.O.,
Maninder Gujral, M.D., Hugh Jacobs, M.D., Mokarram Jafri, M.D., Thomas Kennedy,
M.D., Rubin Kesner, M.D., Andrzej Lechowicz, M.D., Brian McHugh, D.O., John-Patrick
Python, M.D., Richard Romer, M.D., Donald Santella, M.D., James Sonn, M.D., Lance
Wilkins, M.D. and Derrick Wurl, M.D. (hereinafter "Shareholders" and each individually a
"Shareholder"), and the Anesthesia Group of Albany, P.C., a New York professional
corporation with a usual place of business at 1450 Western Avenue, Suite 102, Albany, New
York (hereinafter "Corporation") all as their respective interests exist and are herein
represented .
.:...,_,
WITNESS ETH:
WHEREAS, Shareholders, as of the Record Date, are the owners of all of the issued
and outstanding Capital Stock of the Corporation; and
WHEREAS, all of the parties to this Agreement desire to provide continuity in the
management, operation and ownership of the· Corporation in the event of the death or
withdrawal of a Shareholder, and desire to avoid the liquidation of a Shareholder's interest in
a manner detrimental to the corporate enterprise; and
WHEREAS, the Shareholders desire to promote their mutual interests and the
interest of the Corporation by imposing certain restrictions and obligations on themselves,
on the Corporation, and on the shares of stock of the Corporation; and
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WHEREAS, for the above purposes, the parties desire to impose c~rtain restrictions
upon the transfer of the Common Stock of the Corporation;
NOW THEREFORE, in consideration of the mutual agreements and obligations
hereinafter contained, the parties mutually agree as follows:
1. Restriction on Stock. No Shareholder shall transfer, give, sell,assign,
pledge or otherwise dispose of or encumber his shares of stock in the Corporation except
upon the following conditions:
(a) The party desiring to dispose of or encumber his stock must obtain
the unanimous written consent of the Shareholders owning all of the outstanding stock of
the Corporation entitled to vote.
(b) In the absence of such written consent, the party desiring to dispose
of or encumber his stock shall give to the Corporation and to the other Shareholders written
notice-by registered mail of his intention, and such notice shall contain an offer to sell all his
stock in accordance with the terms of this Agreement. Within thirty days after the date of
such notice, the Corporation shall purchase all of such Shareholder's stock. The purchase
• price and terms of such redemption shall be as set forth in paragraph "6" hereof.
2. Purchase of Stock Upon Death. Upon the death of a Shareholder, the
Corporation shall purchase, and the estate of the deceased Shareholder shall sell, all
common stock of the Corporation o\vned by him at the time of his death. The price to be
paid therefore shall be as established under paragraph 11 611 hereof. The transfer and purchase
shall occur within 30 days of the appointment of a personal representative for the estate.
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3. Purchase of Stock on Reti~ement or Permanent Disabilif:Y.
(a) Upon the retirement or permanent disability, (as defined m a certain
"Employment Agreement" between the Corporation and each of the individual Shareholders
dated even date herewith), of any Shareholder now employed by the Corporation, or
· hereafter employed, all of his stock shall be redeemed by the Corporation. Such redemption
and purchase and the purchase price and payment terms thereof shall be determined under
11
paragraph 6" of this Agreement. The transfer shall occur within 30 days following the
retirement or permanent disability of such Shareholder.
(b) The undersigned Shareholders agree that on the December 31
immediately following their reaching the age of sixty-five (65) the shares owned by the
individual shareholder will be sold to the Corporation. Upon the mutual agreement of the
Corporation and the Retiring Shareholder, the Retiring Shareholder may continue
emplcwnent as a Physician Employee of the Corporation.
4. Purchase of Stock on Voluntary Separation, Involuntary Discharge
from Employment, or Separation from Employment for any Other Cause. Upon the
voluntary separation from employment, the involuntary discharge therefrom, or separ8:tion
from employment for any cause whatever, of any Shareholder now employed by the
Corporation, all of his stock shall be redeemed at the same price and in the same manner as
set forth in paragraph "6 11hereof. The transfer shall occur within 30 days following the
tennination date and expiration of any notice period as provided by the Employment
Agreement.
5. Purchase of Stock on Gradual Retirement. Upon the commencement of a
program of "Gradual Retirement" (as defined in the Employment Agreements of the
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Shareholders) all shares of stock of the affected Shareholder shall be· redeemed by the
.Corporation. Such redemption and purchase, and the purchase price and payment terms
thereof, shall be determined by paragraph "6" of this Agreement.
6. Purchase Price. Unless otheiwise provided by written agreement, the
purchase price of all shares of stock and Shareholder's respective interest in the Corporation
shall be its stated price, fixed herein at $375 per share, unless changed by a certificate signed
by the Shareholders of all of the outstanding shares of stock entitled to vote at a meeting
held for such purpose.
Anything contained in this paragraph "6" to_ the contrary notwithstanding, the
purchase price per share of common stock of the Corporation may be revalued and
redetermined at any time by mutual agreement of the Corporation and all of the
S~areholders.
.:.... .
7. Payment of the Purchase Price. Except as otheiwise specifically provided
in writing, the purchase price of any stock purchased· hereunder shall be paid on the date of
purchase at the offices of the Corporation in cash.
8. Insufficient Surplus. It is intended that, as of the date specified for payment
of the purchase price of stock purchased hereunder, the selling Shareholder or his estate, as
the case may be, shall have no interest in the Corporation, except as a creditor. Therefore, if
the unreserved and unrestricted surplus of the Corporation shall be insufficient to permit
such payment in its entirety at the time specified, the Corporation and its then Shareholders
shall take such corporate action as may be necessary to create sufficient surplus for such
payment, including but not limited to removal of any then existing surplus restrictions and
reservations and/or reduction of the stated capital of the Corporation. If any cash payment
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required by this Agreement would render the Corporation insolvent, then s~ch cash payment
shall be postponed until sufficient surplus is available; and the Corporation shall give to the
payee in lieu thereof, its demand promissory note for the amount of such deferred payment,
said note to be payable on demand when and to the extent that payments thereon would not
render the corporation insolvent, and which note shall bear interest on the unpaid balance
thereof at a rate of prime plus 1½% per annum. So long as such a demand promissory note
is outstanding, the Corporation shall not make any dividend distributions or increase the
salary or other compensation and ben~fits of any employee of the Corporation who is also a
Shareholder of the Corporation.
9. Endorsement on Stock Certificates. All certificates of Common Stock of
the Corporation now owned or hereafter acquired by the Shareholders in any manner
whatsoever shall be endorsed, and until such endorsement is affixed thereto shall be deemed
to be-.endorsed, as follows:
"The stock represented hereby is subject to the provisions of
a certain Shareholder Agreement, dated effective as of July
1, 2009, a copy of which is on file and available for
inspection in the office of the Secretary of the Corporation,
and shall not be transferred except in compliance with the
terms thereof"
The restrictions set forth herein shall be applicable to all Common Stock of the
Corporation now owned by the Shareholders and shall be binding upon all shares of any
class of stock of the Corporation hereafter issued or sold by the Corporation to any person or
party, and the certificates for any stock issued or sold after the date hereof shall bear the
endorsement hereinabove set forth.
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After endorsement the certificates shall be returned to the Shareholders, who shall,
subject to the terms of this Agreement, be entitled to exercise all rights of ownership of such
stock. All stock hereafter issued to the Shareholders shall bear the same endorsement.
10. Shareholders Liability Upon Termination.
(a) In the event a Shareholder's interest in the Corporation is terminated as
·provided herein, the withdrawing Shareholder shall be relieved of any continuing liability
with respect to all liabilitiesand obligations of the Corporation thereafter incurred in due
course of the Corporation's affairs. However, the Shareholder shall not be relieved of any
liability or obligation arising out of his or her professional acts; or from any liabilityor
obligation resulting in the reallocation of income, expense or tax liability assessed against
the Shareholder personally by any taxing authority for any period in which the Shareholder
was a Shareholder of the Corporation; or from any liability or debt owed by the Shareholder
to th'e--Corporation.
(b) In the event the withdrawing Shareholder is a guarantor of any debts of
the Corporation, or obligor on any debt incurred for the Corporation and guaranteed by the
Corporation, the Corporation will make reasonable efforts to obtain a release in favor 9fthe
withdrawing Shareholder of any such obligation or guaranty and to obtain a release of any
collateral pledged by the withdrawing Shareholder. In the event a claim is asserted against
the withdrawing Shareholder on such debt, the Corporation will indemnify and hold the
withdrawing Shareholder, his heirs, successors and assigns harmless from any such loss,
including reasonable attorneys' fees in defending against the asserted debt.
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11. Documentary Stamps. Whenever any stock is sold p_ursuant to this
Agreement, the Seller shall affix to the certificate of stock the necessary documentary
stamps.
12. Necessary Documents. If under the terms of this Agreement, the stock of
any Shareholder or any transferee who has received any stock is, in accordance with the
provisions of paragraphs "1 ", "2", "3", "4" or "5", is purchased or retired, such Shareholder
or transferee, or the legal representative of such Shareholder or transferee shall execute and
deliver all necessary documents that may be reasonably required for accomplishing a
complete transfer of such stock for the purpose of the purchase or retirement transaction.
13. Term. This Agreement shall be effective immediately upon execution and
shall not be terminated except on the occurrence of any one of the following events:
(a) Bankruptcy, receivership or involuntary dissolution of the
Corp6rll~on;
(b) The voluntary agreement of the Corporation and all of its
Shareholders who have signed this Agreement;
(c) If all or substantially all of the assets of the Corporation are sold by
the Corporation, or if the Corporation merges into, consolidates with or otherwise is
acquired by another Corporation.
However, no such termination shall affect the right of a Shareholder, his assigns or his
estate, as the case may be, to the payment of any unpaid balance of the purchase price of
stock purchased by the Corporation in accordance with the terms hereof prior to the
occurrence of any such events.
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14. Petition for Dissolution. If any Shareholder commence~ a proceeding for
dissolution under Section 1104-a of the New York Business Corporation Law, or any
amended, renumbered or successor sections containing substantially similar provisions, the
commencement of such a proceeding shall be deemed to be an immediate termination of the
employment and Employment Agreement, for cause, of the Shareholder or Shareholders
commencing or joining such· proceedings. In such event, the Corporation (pursuant to
Section 1118 of the New York Business Corporation Law or any amended, renumbered or
successor sections co11taining substantially similar provisions) hereby elects to purchase the
shares of the Shareholders commencing or joining such proceeding (pursuant to Section
1118 of the Business Corporation Law or any amended, renumbered or successor sections
containing substantially similar provisions) and the purchase price shall be based on the
stated value of the stock at the close of the last preceding fiscal year, and the terms and
corid~ons for the payment of the purchase price shall be those set forth in paragraph 11 6 11 of
this Agreement.
15. Corporate Governance and Compensation; Restrictive Covenant.
(a) The Corporation shall be governed in accordance with its By-Law~, as
amended, except that the undersigned agree that upon any vote of the Shareholders and/or
Board of Directors, all votes shall be cast so as to provide: (i) the same Total Compensation
to all Senior Shareholders of the Corporation, unless otherwise specifically agreed to by the
effected Senior Shareholder, in writing; and (ii) payment of the Guaranteed Compensation,
Adjusted Compensation, or Reduced Compensation for any other Shareholder Physician, in
the amounts and as provided for in their respective Employment Agreements. All terms
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used in this paragraph "15" shall have the meanings as defined in the Shareholders'
respective Employment Agreements.
(b) Notwithstanding the terms of any other agreement between the
Corporation and the undersigned Shareholders to the contrary, each of the undersigned
Shareholders agree that upon the execution of this Agreement by all Shareholders they shall
individually and collectively be bound by the following Restrictive Covenant:
(i) Upon termination, withdrawal or retirement from employment for
any reason, except for a termination by AGA without cause, each of the
undersigned agrees that for a period of two (2) years following such
termination, and without the prior written consent of the Corporation, not
to engage, directly or indirectly, as principal, agent or employee, in the
practice of medicine specializing in anesthesia at any Hospital or ASC or
'lo.,_, any facility owned, operated or affiliated with any such entity, or for
whom AGA is providing or provided services within twenty-four (24)
months of any such termination, or with whom the Corporation is actively
negotiating at the time of termination.
(ii) In the event of any termination, withdrawal or retirement froin
employment with the Corporation, the said Shareholder shall immediately
resign his or her medical staff memberships and clinical privileges at all
Hospitals and ASCs and other facility at which the Corporation is
providing anesthesia services. Such resignation shall take place despite
any provision in the by-laws, rules and regulations of such Hospitals, ASC
or their medical staffs to the contrary.
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(iii) It is agreed that the Corporation shall be entitled_ to apply to any
court of competent jurisdiction pursuant to Article 75 of the CPLR to
obtain specific performance (whether by injunction or declaratory
judgment or otherwise) of the provisions of this paragraph 15.
(iv) Provided AGA substantially prevails in any enforcement
proceeding, all expenses, including court costs and reasonable attorneys'
fees, necessarily incurred by AGA in connection with the enforcement of
the provisions of this covenant shall be recoverable by AGA.
(v) Each of the undersigned Shareholders expressly agrees that the
restrictions and obligations imposed by this covenant are reasonable and
fair, consistent with the continued success of the Corporation, and are
int
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FILED: ALBANY COUNTY CLERK 11/21/2022 12:32 PM INDEX NO. 908797-22 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/21/2022 STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY ANESTHESIA GROUP OF ALBANY, P.C., VERIFIED PETITION Petitioner, TO STAY ARBITRATION PURSUANT TO CPLR 7503 -- against -- Index No. CHRISTOPHER FLOOD, M.D., MANINDER GUJRAL, M.D., HUGH JACOBS, M.D., JOHN-PATRICK PYTHON, M.D., JAMES SONN, M.D., AND DERRICK WURL, M.D., Respondents. Petitioner, Anesthesia Group of Albany, P.C., by and through its attorneys, Gleason Dunn Walsh & O'Shea, as and for its Verified Petition pursuant to CPLR Section 7503, respectfully alleges as follows: 1. Petitioner is a New York professional corporation with a usual place of business at 1450 Western Avenue, Suite 102, Albany, New York. 2. Upon information and belief, Respondent Christopher Flood, M.D. is a resident of Rensselaer County and is a former shareholder and employee of Petitioner. 3. Upon information and belief, Respondent Maninder Gujral, M.D. is a resident of Albany County and is a former shareholder and employee of Petitioner. 4. Upon information and belief, Respondent Hugh Jacobs, M.D. is a resident of Albany County and is a former shareholder and employee of Petitioner. 5. Upon information and belief, Respondent John-Patrick Python, M.D. is a resident of Albany County and is a former shareholder and employee of Petitioner. 1 of 24 FILED: ALBANY COUNTY CLERK 11/21/2022 12:32 PM INDEX NO. 908797-22 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/21/2022 6. Upon information and belief, Respondent James Sonn, M.D. is a resident of Albany County and is a former shareholder and employee of Petitioner. 7. Upon information and belief, Respondent Derrick Wurl, M.D. is a resident of Saratoga County and is a former shareholder and employee of Petitioner. 8. This action is brought pursuant Article 75 of the CPLR to stay an arbitration commenced by Respondents by the filing of a Demand for Arbitration with the American Arbitration Association, dated November 1, 2022, because there is not a valid agreement to arbitrate Respondents' claim. 9. Venue for this proceeding is properly in Albany County under CPLR § 7502(a)(i) as Petitioner does business and is located in Albany County, all of the Respondents were required to perform work in Albany County at all times relevant herein, and, upon information and belief, several of the Respondents reside in Albany County. 10. This Court has jurisdiction over this matter pursuant to CPLR § 7 502 as Petitioner has not participated in the arbitration in any meaningful way and has not made or been served with an application to compel arbitration. 11. This Court must stay the arbitration demanded by Respondents as fully explained herein because the underlying dispute alleged by Respondents simply does not arise pursuant to an agreement which includes a valid agreement to arbitrate. 12. This matter arises from the dissatisfaction among Respondents -- each a former shareholder of Petitioner -- regarding the total amount of distributions they received from the Petitioner medical practice for the year ending December 31, 2021. 13. Respondents were shareholders of Petitioner Anesthesia Group of Albany, P.C. who retired as shareholders of the practice effective December 31, 2021. 2 2 of 24 FILED: ALBANY COUNTY CLERK 11/21/2022 12:32 PM INDEX NO. 908797-22 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/21/2022 14. Respondents do not allege a dispute by and between themselves and their former shareholder colleagues that relates to or arises from the terms of the Shareholder Agreement. 15. Similarly, there is no dispute regarding Respondents status as former shareholders or the compensation Respondents received and/or are receiving as the result of their resignation as shareholders in exchange for their shares in the Petitioner company. 16. On or about November 1, 2022, Respondents filed a Demand for Arbitration, dated November 1, 2022, with the American Arbitration Association. A copy of Respondents' Demand for Arbitration is attached hereto as Exhibit A. 17. Respondents' Demand for Arbitration relies upon an arbitration prov1s10n contained in the Shareholder Agreement which was attached as Exhibit A to the Demand for Arbitration and is attached hereto within Exhibit A. (See Shareholder Agreement, at p. 11). 18. The arbitration provision cited by Respondents expressly limits the agreement to arbitrate between Petitioner and Respondents to "any dispute arising under this [Shareholder] [A]greement, its terms or performance." (See Shareholder Agreement, at p. 11). 19. The question presented by Respondents in their Demand for Arbitration does not arise under the Shareholder Agreement, its terms or performance. 20. Respondents do not allege and there is no dispute that the distributions made by Petitioner to its shareholders were improperly calculated. 21. Rather, Respondents seek a determination as to whether Petitioner's accounts receivable were properly collected for the year of 2021. (See Demand for Arbitration at Exhibit A.) 22. The Shareholder Agreement does not address the collection methods and practices employed by Petitioner to recover accounts receivable. 3 3 of 24 FILED: ALBANY COUNTY CLERK 11/21/2022 12:32 PM INDEX NO. 908797-22 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/21/2022 23. As such, the subject matter of Respondents claim does not arise within the scope of the arbitration agreement found in the Shareholder Agreement. 24. Respondents do not allege that any other agreement can serve as the basis of their entitlement to arbitration. 25. As a result of Respondents' improper reliance upon the Shareholder Agreement for their claim, Respondents have failed to properly assert that an agreement to arbitrate exists between the parties on the matter of Petitioner's collection practices. 26. As a result of Respondents' failure to identify a proper arbitration agreement, the present dispute is not suitable for arbitration. 27. Respondents have raised only the single dispute identified hereinbefore, and because that controversy is not properly arbitrable, Respondents' entire controversy is unsuitable for arbitration. 28. Since the dispute is not subject to an agreement to arbitrate, an application to this court for a stay of arbitration is proper under CPLR 7503 and applicable case law. WHEREFORE, Petitioner respectfully requests that an order be made and entered as follows: a) vacating and otherwise declaring a nullity the Demand for Arbitration as heretofore filed by Respondent (Exhibit A); and b) permanently staying the arbitration sought in the aforementioned Demand upon the grounds that the present dispute is not one for which an agreement to arbitrate between the parties exists; and c) enjoining the Respondents from pursuing further arbitration of the present dispute under the shareholder agreement referenced in Respondents' Demand for Arbitration; and d) granting such other and further relief as to the Court may seem just and proper. 4 4 of 24 FILED: ALBANY COUNTY CLERK 11/21/2022 12:32 PM INDEX NO. 908797-22 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/21/2022 Dated: Albany, New York November 21, 2022 Yours, etc. &O'SHEA By: Email: jcalareso@gdwo.net To: Daniel Hurteau, Esq. Attorney for Respondents Nixon Peabody 677 Broadway, 10th Floor Albany, NY 12207 Tel: (518) 427-2652 Fax: (866) 947-0687 Email: dhurteau@nixonpeabody.com 5 5 of 24 FILED: ALBANY COUNTY CLERK 11/21/2022 12:32 PM INDEX NO. 908797-22 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/21/2022 VERIFICATION STATEOFNEWYO./ RK jss.: COUNTY O F ~ : - - ) / ~A~A-rOG1A- LANCE WILKINS, M.D., being duly sworn, deposes and says that he is a Shareholder and President of Anesthesia Group of Albany, P.C., the business entity named as the Petitioner in the within action; that he has read the foregoing VERIFIED PETITION and knows the contents thereof; and that the same is true to his own knowledge, except as to the matters therein stated to be alleged upon information and belief, and as to those matters, he believes them to be true. LANCEWILKINS, M.D. ,,,,.- Swpi;p. ,to before me, this O tlt( day of November, 2022. NOTARY PUBLIC MICHELE MARIE WICKS Notary Public, State of New York No. 01Wl6319119 .Qualified in Schenectady County Commission Expires 2/09/23 6 of 24 FILED: ALBANY COUNTY CLERK 11/21/2022 12:32 PM INDEX NO. 908797-22 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/21/2022 EXHIBIT A 7 of 24 FILED: ALBANY COUNTY CLERK 11/21/2022 12:32 PM INDEX NO. 908797-22 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/21/2022 e AMERICAN ARBITRATION AsSOCIATJON• jAAA Case No. 01-22-0004-6185 COMMERCIAL ARBITRATION RULES DEMAND FOR ARBITRATION For Consumer or Employment cases, please visit www.adr.org for appropriate forms. You are hereby notified that a copy of our arbitration agreement and this demand are being filed with the American Arbitration Association with a request that it commence administration of the arbitration. The AAA will provide notice of your opportunity to file an answering statement. Name of Respondent: Anesthesia Group of Albany, P.C. Name of Representative (if known): Tammy Cumo Address: 1450 Western Avenue, Suite 102 Name ofFirm (if applicable): Gleason, Dunn, Walsh & O'Shea Representative's Address: 40 Beaver Street City: Albany I State:NY I Zip Code: 12203 City:Albany I State: NY I Zip Code: 12207 Phone: I Fax: Phone: 518-599-7573 I Fax: 518-432-5221 E-mail Address: E-Mail Address: tcumolm!!dwo.net The named claimant, a party to an arbitration agreement which provides for arbitration under the Commercial Rules of the American Arbitration Association, hereby demands arbitration. Brief Description of the Dispute: The Claimants are all Shareholders in AGA that retired at the end of 2021. As a result, each (along with the other Shareholders) was entitled to a distribution based on 2021 collections. The distribution received by the Shareholders at the end of 2021 was inappropriate, inequitable and inadequate. An amount of approximately $4.2 million should have been included in the distribution for all Shareholders but was not because of a failure on the part of AGA to collect AR. The six retiring Shareholders bringing this arbitration are entitled (SEE EXHIBIT A ATTACHED.) to share in approximately $1.7 million toward their distributions at the end of 2021. Dollar Amount of Claim:$1.7 Million Other Relief Sought:0 Attorney's Fees0 Interest0 Arbitration Costs D Punitive/Exemplary Amount Enclosed: $ In Accordance with Fee Schedule: D Flexible Fee Schedule 0Standard Fee Schedule An attorney that regularly handles civil Please describe the qualifications you seek for arbitrator(s) to be appointed to hear this dispute: commercial litigation and shareholders distribution issues. Hearing Locale Requested: Albany, New York (check one) □ Requested by Claimant0 Locale provision included in the contract Estimated time needed for hearings overall: 3-5 days Respondents: Type of Business: Claimants: Anesthesiologists Respondent: Anesthesiology Office Are any parties to this arbitration, or their controlling shareholder or parent company, from different countries than each other? No. Signature (may be signed by representativi,;}--9-,....ax1(;;:.,__ ___ Date: 11/1/2022 Name of Claimants: Maninder Guiral, Christopher Flood,.Hugh Jacobs, John-Patrick Pvthon, James Sonn, and Derrick Wurl Address (to be used in connection with this case): 677 Broadway City: Albany I State: New York IZip Code: 12207 Phone: 518-427-2652 Fax: E-mail Address:dhurteau@nixonpeabodv.com Name of Representative:Daniel Hurteau Name ofFirm (if applicable): Nixon Peabody, LLP 677 Broadway, I 0 th Floor Representative's Address: City: Albany I State: New York I Zip Code: 12207 Phone No.: 518-427-2652 Fax No.:866-94 7-0687 Email Address: dhurteau@nixonpeabody.com To begin proceedings, please file online at www.adr.org/fileonline. You will need to upload a copy of this Demand and the Arbitration Agreement, and pay the appropriate fee. 8 of 24 FILED: ALBANY COUNTY CLERK 11/21/2022 12:32 PM INDEX NO. 908797-22 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/21/2022 SHAREHOLDER AGREEMENT This Agreement, effective the 1st day of July, 2009 (the "Record Date"), by and between Peter G. Andriakos, M.D., Paul Chalmers, M.D., Sanjay Chaudhry, M.D., Paul Danker, M.D., Nimesh Desai, M.D., Christopher Flood, M.D., Lewis Glaser, D.O., Maninder Gujral, M.D., Hugh Jacobs, M.D., Mokarram Jafri, M.D., Thomas Kennedy, M.D., Rubin Kesner, M.D., Andrzej Lechowicz, M.D., Brian McHugh, D.O., John-Patrick Python, M.D., Richard Romer, M.D., Donald Santella, M.D., James Sonn, M.D., Lance Wilkins, M.D. and Derrick Wurl, M.D. (hereinafter "Shareholders" and each individually a "Shareholder"), and the Anesthesia Group of Albany, P.C., a New York professional corporation with a usual place of business at 1450 Western Avenue, Suite 102, Albany, New York (hereinafter "Corporation") all as their respective interests exist and are herein represented . .:...,_, WITNESS ETH: WHEREAS, Shareholders, as of the Record Date, are the owners of all of the issued and outstanding Capital Stock of the Corporation; and WHEREAS, all of the parties to this Agreement desire to provide continuity in the management, operation and ownership of the· Corporation in the event of the death or withdrawal of a Shareholder, and desire to avoid the liquidation of a Shareholder's interest in a manner detrimental to the corporate enterprise; and WHEREAS, the Shareholders desire to promote their mutual interests and the interest of the Corporation by imposing certain restrictions and obligations on themselves, on the Corporation, and on the shares of stock of the Corporation; and 9 of 24 FILED: ALBANY COUNTY CLERK 11/21/2022 12:32 PM INDEX NO. 908797-22 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/21/2022 WHEREAS, for the above purposes, the parties desire to impose c~rtain restrictions upon the transfer of the Common Stock of the Corporation; NOW THEREFORE, in consideration of the mutual agreements and obligations hereinafter contained, the parties mutually agree as follows: 1. Restriction on Stock. No Shareholder shall transfer, give, sell,assign, pledge or otherwise dispose of or encumber his shares of stock in the Corporation except upon the following conditions: (a) The party desiring to dispose of or encumber his stock must obtain the unanimous written consent of the Shareholders owning all of the outstanding stock of the Corporation entitled to vote. (b) In the absence of such written consent, the party desiring to dispose of or encumber his stock shall give to the Corporation and to the other Shareholders written notice-by registered mail of his intention, and such notice shall contain an offer to sell all his stock in accordance with the terms of this Agreement. Within thirty days after the date of such notice, the Corporation shall purchase all of such Shareholder's stock. The purchase • price and terms of such redemption shall be as set forth in paragraph "6" hereof. 2. Purchase of Stock Upon Death. Upon the death of a Shareholder, the Corporation shall purchase, and the estate of the deceased Shareholder shall sell, all common stock of the Corporation o\vned by him at the time of his death. The price to be paid therefore shall be as established under paragraph 11 611 hereof. The transfer and purchase shall occur within 30 days of the appointment of a personal representative for the estate. 2 10 of 24 FILED: ALBANY COUNTY CLERK 11/21/2022 12:32 PM INDEX NO. 908797-22 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/21/2022 3. Purchase of Stock on Reti~ement or Permanent Disabilif:Y. (a) Upon the retirement or permanent disability, (as defined m a certain "Employment Agreement" between the Corporation and each of the individual Shareholders dated even date herewith), of any Shareholder now employed by the Corporation, or · hereafter employed, all of his stock shall be redeemed by the Corporation. Such redemption and purchase and the purchase price and payment terms thereof shall be determined under 11 paragraph 6" of this Agreement. The transfer shall occur within 30 days following the retirement or permanent disability of such Shareholder. (b) The undersigned Shareholders agree that on the December 31 immediately following their reaching the age of sixty-five (65) the shares owned by the individual shareholder will be sold to the Corporation. Upon the mutual agreement of the Corporation and the Retiring Shareholder, the Retiring Shareholder may continue emplcwnent as a Physician Employee of the Corporation. 4. Purchase of Stock on Voluntary Separation, Involuntary Discharge from Employment, or Separation from Employment for any Other Cause. Upon the voluntary separation from employment, the involuntary discharge therefrom, or separ8:tion from employment for any cause whatever, of any Shareholder now employed by the Corporation, all of his stock shall be redeemed at the same price and in the same manner as set forth in paragraph "6 11hereof. The transfer shall occur within 30 days following the tennination date and expiration of any notice period as provided by the Employment Agreement. 5. Purchase of Stock on Gradual Retirement. Upon the commencement of a program of "Gradual Retirement" (as defined in the Employment Agreements of the 3 11 of 24 FILED: ALBANY COUNTY CLERK 11/21/2022 12:32 PM INDEX NO. 908797-22 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/21/2022 Shareholders) all shares of stock of the affected Shareholder shall be· redeemed by the .Corporation. Such redemption and purchase, and the purchase price and payment terms thereof, shall be determined by paragraph "6" of this Agreement. 6. Purchase Price. Unless otheiwise provided by written agreement, the purchase price of all shares of stock and Shareholder's respective interest in the Corporation shall be its stated price, fixed herein at $375 per share, unless changed by a certificate signed by the Shareholders of all of the outstanding shares of stock entitled to vote at a meeting held for such purpose. Anything contained in this paragraph "6" to_ the contrary notwithstanding, the purchase price per share of common stock of the Corporation may be revalued and redetermined at any time by mutual agreement of the Corporation and all of the S~areholders. .:.... . 7. Payment of the Purchase Price. Except as otheiwise specifically provided in writing, the purchase price of any stock purchased· hereunder shall be paid on the date of purchase at the offices of the Corporation in cash. 8. Insufficient Surplus. It is intended that, as of the date specified for payment of the purchase price of stock purchased hereunder, the selling Shareholder or his estate, as the case may be, shall have no interest in the Corporation, except as a creditor. Therefore, if the unreserved and unrestricted surplus of the Corporation shall be insufficient to permit such payment in its entirety at the time specified, the Corporation and its then Shareholders shall take such corporate action as may be necessary to create sufficient surplus for such payment, including but not limited to removal of any then existing surplus restrictions and reservations and/or reduction of the stated capital of the Corporation. If any cash payment 12 of 24 FILED: ALBANY COUNTY CLERK 11/21/2022 12:32 PM INDEX NO. 908797-22 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/21/2022 required by this Agreement would render the Corporation insolvent, then s~ch cash payment shall be postponed until sufficient surplus is available; and the Corporation shall give to the payee in lieu thereof, its demand promissory note for the amount of such deferred payment, said note to be payable on demand when and to the extent that payments thereon would not render the corporation insolvent, and which note shall bear interest on the unpaid balance thereof at a rate of prime plus 1½% per annum. So long as such a demand promissory note is outstanding, the Corporation shall not make any dividend distributions or increase the salary or other compensation and ben~fits of any employee of the Corporation who is also a Shareholder of the Corporation. 9. Endorsement on Stock Certificates. All certificates of Common Stock of the Corporation now owned or hereafter acquired by the Shareholders in any manner whatsoever shall be endorsed, and until such endorsement is affixed thereto shall be deemed to be-.endorsed, as follows: "The stock represented hereby is subject to the provisions of a certain Shareholder Agreement, dated effective as of July 1, 2009, a copy of which is on file and available for inspection in the office of the Secretary of the Corporation, and shall not be transferred except in compliance with the terms thereof" The restrictions set forth herein shall be applicable to all Common Stock of the Corporation now owned by the Shareholders and shall be binding upon all shares of any class of stock of the Corporation hereafter issued or sold by the Corporation to any person or party, and the certificates for any stock issued or sold after the date hereof shall bear the endorsement hereinabove set forth. 5 13 of 24 FILED: ALBANY COUNTY CLERK 11/21/2022 12:32 PM INDEX NO. 908797-22 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/21/2022 After endorsement the certificates shall be returned to the Shareholders, who shall, subject to the terms of this Agreement, be entitled to exercise all rights of ownership of such stock. All stock hereafter issued to the Shareholders shall bear the same endorsement. 10. Shareholders Liability Upon Termination. (a) In the event a Shareholder's interest in the Corporation is terminated as ·provided herein, the withdrawing Shareholder shall be relieved of any continuing liability with respect to all liabilitiesand obligations of the Corporation thereafter incurred in due course of the Corporation's affairs. However, the Shareholder shall not be relieved of any liability or obligation arising out of his or her professional acts; or from any liabilityor obligation resulting in the reallocation of income, expense or tax liability assessed against the Shareholder personally by any taxing authority for any period in which the Shareholder was a Shareholder of the Corporation; or from any liability or debt owed by the Shareholder to th'e--Corporation. (b) In the event the withdrawing Shareholder is a guarantor of any debts of the Corporation, or obligor on any debt incurred for the Corporation and guaranteed by the Corporation, the Corporation will make reasonable efforts to obtain a release in favor 9fthe withdrawing Shareholder of any such obligation or guaranty and to obtain a release of any collateral pledged by the withdrawing Shareholder. In the event a claim is asserted against the withdrawing Shareholder on such debt, the Corporation will indemnify and hold the withdrawing Shareholder, his heirs, successors and assigns harmless from any such loss, including reasonable attorneys' fees in defending against the asserted debt. 6 14 of 24 FILED: ALBANY COUNTY CLERK 11/21/2022 12:32 PM INDEX NO. 908797-22 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/21/2022 11. Documentary Stamps. Whenever any stock is sold p_ursuant to this Agreement, the Seller shall affix to the certificate of stock the necessary documentary stamps. 12. Necessary Documents. If under the terms of this Agreement, the stock of any Shareholder or any transferee who has received any stock is, in accordance with the provisions of paragraphs "1 ", "2", "3", "4" or "5", is purchased or retired, such Shareholder or transferee, or the legal representative of such Shareholder or transferee shall execute and deliver all necessary documents that may be reasonably required for accomplishing a complete transfer of such stock for the purpose of the purchase or retirement transaction. 13. Term. This Agreement shall be effective immediately upon execution and shall not be terminated except on the occurrence of any one of the following events: (a) Bankruptcy, receivership or involuntary dissolution of the Corp6rll~on; (b) The voluntary agreement of the Corporation and all of its Shareholders who have signed this Agreement; (c) If all or substantially all of the assets of the Corporation are sold by the Corporation, or if the Corporation merges into, consolidates with or otherwise is acquired by another Corporation. However, no such termination shall affect the right of a Shareholder, his assigns or his estate, as the case may be, to the payment of any unpaid balance of the purchase price of stock purchased by the Corporation in accordance with the terms hereof prior to the occurrence of any such events. 7 15 of 24 FILED: ALBANY COUNTY CLERK 11/21/2022 12:32 PM INDEX NO. 908797-22 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/21/2022 14. Petition for Dissolution. If any Shareholder commence~ a proceeding for dissolution under Section 1104-a of the New York Business Corporation Law, or any amended, renumbered or successor sections containing substantially similar provisions, the commencement of such a proceeding shall be deemed to be an immediate termination of the employment and Employment Agreement, for cause, of the Shareholder or Shareholders commencing or joining such· proceedings. In such event, the Corporation (pursuant to Section 1118 of the New York Business Corporation Law or any amended, renumbered or successor sections co11taining substantially similar provisions) hereby elects to purchase the shares of the Shareholders commencing or joining such proceeding (pursuant to Section 1118 of the Business Corporation Law or any amended, renumbered or successor sections containing substantially similar provisions) and the purchase price shall be based on the stated value of the stock at the close of the last preceding fiscal year, and the terms and corid~ons for the payment of the purchase price shall be those set forth in paragraph 11 6 11 of this Agreement. 15. Corporate Governance and Compensation; Restrictive Covenant. (a) The Corporation shall be governed in accordance with its By-Law~, as amended, except that the undersigned agree that upon any vote of the Shareholders and/or Board of Directors, all votes shall be cast so as to provide: (i) the same Total Compensation to all Senior Shareholders of the Corporation, unless otherwise specifically agreed to by the effected Senior Shareholder, in writing; and (ii) payment of the Guaranteed Compensation, Adjusted Compensation, or Reduced Compensation for any other Shareholder Physician, in the amounts and as provided for in their respective Employment Agreements. All terms 8 16 of 24 FILED: ALBANY COUNTY CLERK 11/21/2022 12:32 PM INDEX NO. 908797-22 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/21/2022 used in this paragraph "15" shall have the meanings as defined in the Shareholders' respective Employment Agreements. (b) Notwithstanding the terms of any other agreement between the Corporation and the undersigned Shareholders to the contrary, each of the undersigned Shareholders agree that upon the execution of this Agreement by all Shareholders they shall individually and collectively be bound by the following Restrictive Covenant: (i) Upon termination, withdrawal or retirement from employment for any reason, except for a termination by AGA without cause, each of the undersigned agrees that for a period of two (2) years following such termination, and without the prior written consent of the Corporation, not to engage, directly or indirectly, as principal, agent or employee, in the practice of medicine specializing in anesthesia at any Hospital or ASC or 'lo.,_, any facility owned, operated or affiliated with any such entity, or for whom AGA is providing or provided services within twenty-four (24) months of any such termination, or with whom the Corporation is actively negotiating at the time of termination. (ii) In the event of any termination, withdrawal or retirement froin employment with the Corporation, the said Shareholder shall immediately resign his or her medical staff memberships and clinical privileges at all Hospitals and ASCs and other facility at which the Corporation is providing anesthesia services. Such resignation shall take place despite any provision in the by-laws, rules and regulations of such Hospitals, ASC or their medical staffs to the contrary. 9 17 of 24 FILED: ALBANY COUNTY CLERK 11/21/2022 12:32 PM INDEX NO. 908797-22 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 11/21/2022 (iii) It is agreed that the Corporation shall be entitled_ to apply to any court of competent jurisdiction pursuant to Article 75 of the CPLR to obtain specific performance (whether by injunction or declaratory judgment or otherwise) of the provisions of this paragraph 15. (iv) Provided AGA substantially prevails in any enforcement proceeding, all expenses, including court costs and reasonable attorneys' fees, necessarily incurred by AGA in connection with the enforcement of the provisions of this covenant shall be recoverable by AGA. (v) Each of the undersigned Shareholders expressly agrees that the restrictions and obligations imposed by this covenant are reasonable and fair, consistent with the continued success of the Corporation, and are int