Motion,Ex Parte: Quality Choice Healthcare Inc. D/B/A Quality Choice Correctional Healthcare, New York Healthcare Medicine, Pllc v. The County Of Orange, New York, New York Correct Care Solutions Medical Services, P.C., John Doe 1, John Doe 2, John Doe 3

On September 23, 2016 a Motion,Ex Parte was filed involving a dispute between New York Healthcare Medicine, Pllc, Quality Choice Healthcare Inc. D B A Quality Choice Correctional Healthcare, and John Doe 1, John Doe 2, John Doe 3, New York Correct Care Solutions Medical Services, P.C., The County Of Orange, New York, for Commercial - Contract in the District Court of Orange County.

Preview
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SUPREME COURT STATE OF NEW YORK
COUNTY OF ORANGE
- --------- - -- - -------------- - -- - - - -- - -- - X
Quality Choice Healthcare Inc. d/b/a Quality Choice
Correctional Healthcare, and New York Healthcare Medicine,

PLLC,

Plaintiffs,

-against-

Index No.: EF006544-2016
The County of Orange, New York, New York Correct Care

Solutions Medical Services, PC and John Does 1 - 3,
the names being fictitions and unknown to Plaintiffs,

Defendants.

- -- - - - -- - --------------- - -- - - - -- - -- - - -- - X

MEMORANDUM OF LAW

LANGDON C. CHAPMAN
County Attorney for Orange County
Attorney for Defendant, The County of

Orange, New York
255 Main Street

Goshen, New York 10924

(845) 291-3150

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TABLE OF CONTENTS

TABLE OF AUTHORITIES..........................................................i

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

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

ARGUMENT.............................................................................3

POINT I:A PROPER DEMAND, UNDER CPLR 3216 WAS
MADE BY DEFENDANT COUNTY AND NOT RESPONDED
TO BY PLAINTIFF .............................................................3

POINT II: THE EXTENSIVE DELAY CAUSED BY
PLAINTIFFS HAS BEEN AND IS PREJUDICIAL
TO THE COUNTY ............................................................5

POINT III:NO JUSTIFIABLE EXCUSE FOR THE FAILURE
TO PROSECUTE THIS CASE HAS BEEN BROUGHT TO
THE ATTENTION OF THE DEFENDANT
COUNTY OF ORANGE .....................................................7

POINT IV: PLAINTIFF'S PLEADINGS SHOULD BE STRUCK
AS PLAINTIFF HAS FAILED TO ATTEND COURT
ORDERED DEPOSITIONS ..................................................7

CONCLUSION...........................................................................9

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TABLE OF AUTHORITIES

PAGE

State Cases

Casey v. Casey, 39 A.D. 3d 579 (2nd Dept. 2007).........................................................................
9

Ferrera v. Esposit, 66 A.D. 3d 637 (2nd Dept. 2009)... _ ......................................................
6

Michaels v. Sunrise Bldg. and Remodeling, Inc., 65 A.D. 3d 1021 (2nd Dept. 2009)...................
5

Randolph v. Cornell, 29 A.D. 3d 557 (2nd Dept. 2006).................................................................
6

Saginor v. Brook, 92 A.D. 3d 860 (2nd Dept. 2012)......................................................................
7

Sanchez v. Serje, 78 A.D. 3d 1155 (2nd Dept. 2010).............................. .........................
7

Sharpe v. Osorio, 21 A.D. 3d 467 (2nd Dept. 2005)......................................................................
8

Umar v. Ohrnberger, 72 A.D. 3d 1066 (2nd Dept. 2013)......................... .................
9

State Statutes

Section 50-H of the General Municipal Law........ .......... ............... ..........
3

State Rules

CPLR 3126(3) ............................................................................................................
9

CPLR 3216...............................................................................................
.................
passim

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PRELIMINARY STATEMENT

From the inception of this case, Plaintiffs have failed to prosecute this action in good

faith and have engaged in obstructionist behavior. The instant motion to dismiss is only made

after a year of inactivity by Plaintiffs and a refusal by Plaintiffs to return phone calls, respond to

correspoñdeñce, appear at Court Ordered depositions, and respond to a demand made pursuant to

CPLR 3216 to serve and file a Note of Issue.

STATEMENT OF FACTS

The Underlying Contract

The facts of this case are straight forward. On or about May 30, 2014, Orange County

put out an RFP for medical services at the County Jail (RFP # OCSO2-14). See Paragraph 9 of

Amended Verified Complaint (ECF Doc. Number 35). Thereafter, among others, Plaintiff

Quality Choice Healthcare d/b/a Quality Choice Correctional Healthcare (hereinafter referred to

as QCCH) submitted a response to the RFP. See RFP Response contained at Exhibit 2; ECF

Document Number 59, commencing at Bates Stamp Page 502. In February of 2016, the County

terminated the contracts of Plaintiff. Plaintiff served a Notice of Claim against the County of

Orange for alleged damages in excess of $20 million. See Affirmation of Langdon Chapman at

Paragraph 17. Plaintiffs then filed a Summons and Complaint and later an Amended Summons

and Complaint. Please see ECF Doc. Numbers 1 and 2 and 35. Defendant County of Orange

has interposed multiple counterclaims which in essence allege that Plaintiffs failed to properly

perform. Please see Verified Answer with Counterclaims at ECF Doc. 110. Plaintiffs filed a

Reply. See ECF Doc. 112.

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Plaintiffs Have Continuously Taken Steps to Obstruct the Prosecution of Their Own Action

In essence, this is nothing more than a simple breach of contract case. It has been unduly

Plaintiffs'
complicated solely by attempting to create tort based claims and then failing to

Plaintiffs'
cooperate with Court Ordered discovery. Solely as a result of failures to follow basic

rules of civil procedure and Plaintiff's refusal to follow easily understood Court Orders, no less

than four motions have had to be made by Orange County to force responses by Plaintiff (and

now this fifth one must be made).

The Four Underlying Motions by the County to Date

The Notice of Claim filed by Plaintiffs included tort claims and was in excess of $20

million. See Affirmation of Langdon Chapman at Paragraph 17. It iselementary law that tort

based claims against a mimicipality are subject to an examination under Section 50-H of the

General Municipal Law. Here, Plaintiffs served their Notice of Claim but refused to participate

in the 50-H hearings, necessitating the County's first Motion to Dismiss. See Chapman

Affirmation at Paragraph 19.

Upon the filing of that first Motion to Dismiss by the County, the then assigned Judge,

Hon. Gretchen Walsh, scheduled an appearance by all parties. Only then did Plaintiffs agree to

submit to the legally required 50-H hearing. Chapman Affirmation at Paragraph 21. As a

result, since itwould simply be a waste of the Court's time and resources just to have the Motion

decided in the County's favor (only to have Plaintiffs then submit to the 50-H and re-file a case

Plaintiffs'
within the statute of limitations), the County withdrew itsMotion to Dismiss, upon

agreeing to appear for the 50-H hearings. See Chapman Affirmation at Paragraph 21.

After the 50-H hearings occurred, Plaintiff filed an Amended Verified Complaint. Please

see ECF Doc. No. 35. The County moved to dismiss the Amended Verified Complaint. Please

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see ECF Doc. No. 37 documents related to said motion. The Court dismissed all tort based

claims, leaving only slightly over $1 million in claims even on the table for past services

rendered. Please see the Court's decision dated May 23, 2017 (ECF Doc. No. 106) juxtaposed

against the amounts claimed in the Amended Verified Complaint for past services rendered

(causes of action 1, 2, and 3 at ECF Doc. No. 35).

The Third Motion by the County was necessitated became Plaintiffs refused to properly

answer discovery demands. Please see ECF Document Number 120 and itsrelated papers. The

Court Ordered Plaintiffs to supplement their discovery responses. Please see ECF Document

Number 183.

The Fourth Motion was made because the Plaintiffs refused to fully answer the discovery

responses the Court, in response to the third Motion by the County (associated with ECF

Document Number 120 and itsrelated papers) mandated. The County had to again move for

responses (only to then see Plaintiffs supply some additional material). Please see ECF

Document Number 198 and itsrelated papers.

The instant motion is necessitated because after unsuccessfully seeking to have the

Appellate Division stay this Court Ordered deposition schedule, Plaintiffs have simply refused

depositions.1
to show up for Court Ordered Plaintiffs refused to respond to phone calls, refused

to respond to written communications, and lastly refused to file a Note of Issue despite demand

for the same being made on December 28, 2018.

RGUMEN

POINT ONE: A PROPER DEMAND, UNDER CPLR 3216 WAS MADE BY
DEFENDANT COUNTY AND NOT RESPONDED TO BY PLAINTIFF

3 The consented to a short of at theAppellate Division tosubmit opposition papers.
County stay Discovery inorder
The Appellate Division denied Plaintiff's
effortto stay discovery on June 13, 2018. Please see ECF Doc. No. 198.
cer-
Since thattime, now more thana year ago, have
Plaintiffs utterlyrefused to bate with the County or
advance thelitigationinany manner whatsoever.

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CPLR 3216 provides a mechanism for the Court to dismiss an action where a party

refuses to prosecute the case or otherwise fails to file a note of issue. See Michaels v. Sunrise

(2nd
Bldg. and Remodeling, Inc. 65 A.D. 3d 1021,2011, 885 NYS 2d 110, 111 Dept. 2009). That

mechanism is available once issue has been joined and more than one year must have elapsed

since issue was joined. Here, issue has been joined and more than one year has elapsed. The

statute lays out the following path for its use to dismiss a case:

- A written demand must be served registered or certified mail against
by
whom the relief requested (dismissal) is sought;
- The demand must be that the serve and filea note of issue within
party ninety
days after receipt of sch demand;
- The demand must further state thtupon default of and such note
serving filing
of issue, the same will serve as a basis for a motion to dismiss for

unreasonably neglecting to proceed. CPLR 3216

Here, on December 28, 2018 the undersigned caused to be served upon Joseph Maria,

Esq., the attorney of record for Plaintiffs a demand that Plaintiffs serve and file a note of issue in

this case within ninety days. Such demand was served certified mail. Such demand was wholly

unresponded to. A copy of such demand along with the certified mail slip (actually showing it

was signed for personally by Attorney Maria) was annexed to the supporting Affirmation of the

undersigned as Exhibit 9.

Plainly all the statutory requimumts have been met. Where a party is served with a

ninety day notice pursuant to CPLR 3216, "it is incumbent upon that party to comply with the

notice by filing a note of issue or by moving, before the default date, either to vacate the notice

period." (2nd
or extent the 90 day Randolph v. Cornell 29 A.D. 3d 557, 816 N.Y.S. 2d 111

neither."
2006). Here, as in Randolph "the Plaintiff did

While CPLR 3216 can be a "forgiving statute", Gerrera v. Esposit 66 A.D. 3d 637, 886

(2nd
N.Y.S. 2d 757 Dept. 2009), the instant case is nothing like Esposit. In that case, the party

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deadline"
upon whom the demand was served filed their note of issue "just four days beyond the

and there was no history of persistent neglect or extensive delay. In the instant case, on the other

hand, nearly six months has passed since the 90 day demand was made. In the instant case more

than an entire year has passed since Plaintiff has taken any action to advance this case despite

multiple demands.

From the very beginning, despite being represented by competent Counsel, Plaintiffs

refused to even appear for an obviously mandatory 50-H hearing on the myriad tort based claims.

See Chapman Affirmation at paragraphs 19-21. Those tort based claims themselves were

absurd and dismissed by the Comt. See Chapman Affirmation at paragraph 24. Plaintiffs then

refused to fully comply with Court Ordered discovery, refused to appear at depositions, made a

wholly wasteful attempt to delay discovery by doing to the Appellate Division and after the

Appellate Division rejected that effort, Plaintiff decided simply to not show up for depositions at

all.

POINT TWO: THE EXTENSIVE DELAY CAUSED BY PLAINTIFFS HAS
BEEN AND IS PREJUDICIAL TO THE COUNTY

Prejudice to Defendants is a consideration in dismissing a case for want of prosecution

(211d
pursuant to CPLR 3216. Saginor v. Brook 92 A.D. 3d 860, 939 N.Y.S. 2d 124 Dept. 2012);

(2nd
Sanchez v. Serje, 78 A.D. 3d 1155, 913 N.Y.S. 2d 919 (Mem) Dept. 2010). Here the County

is plainly prejudiced. For example, the County has already had to defend a separate case relating

Plaintiffs'
to non-payment to a third party healthcare provider.

The Court can take judicial notice of the matter of Orange Regional Medical Center v.

The County of Orange, Supreme Court, Orange County EF000428-2018. In that case, the

County properly asserted (and the Court agreed) that the County was not liable for the debt owed

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by one or more of the Plaintiffs in the instant case. However, the County stillhad to spend

numerous hours defending the case.

Regardless of the merits or lack of merits of paying these third party healthcare providers,

the County has spent hundreds of hours responding to the Orange Regional case and dealing

with numerous other healthcare providers who indicate they were unpaid by Plaintiffs. See

Chapman Affirmation at paragraphs 53-56.

Beyond the County being prejudiced by having to defend the Orange Regional case, the

County had to prepare county employees for the possibility of litigation with other providres,

prepare for depositions (which never occurred) in the instant case, and maintain voluminous

records relating to this litigation. For example, over a year ago, Plaintiffs identified numerous

Plaintiffs'
third party healthcare providers who provided services associated with former Orange

County contract and remain unpaid. See Chapman Affirmation at paragraph 56. As these are

debts of Plaintiffs (as the Court correctly noted in the Orange Regional v. County of Orange

matter), these health care providers have effectively been leftin limbo while Plaintiffs ignored

Plaintiffs'
Court ordered discovery schedules. Accordingly, the prejudice of refusal to prosecute

their case leaves not only Orange County having to hear from multiple entities seeking payrnest

(and strategize potential litigation, and defend actual litigation), wait to resolve the multiple

claims, but numerous proivders of critical healthcare services have gone unpaid.

The instant case is nothing more than a straightforward breach of contract case.

Plaintiffs'
continued behavior should not be countenanced and the Court should dismiss with

prejudice the instant case so that remaining healthare providers can take such actions as they

deem appropriate, and the County can as well, with respect to the same.

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POINT THREE: NO JUSTIFIABLE EXCUSE FOR THE FAILURE TO PROSECUTE
THIS CASE HAS BEEN BROUGHT TO THE ATTENTION OF THE DEFENDANT
COUNTY OF ORANGE

While CPLR 3216 permits (but does not require) the Trial Court to excuse the failure to

file a Note of Issue within ninety days after receiving a demand under CPLR 3216, no justifiable

excuse has been offered by Plaintiffs such as would permit a late filing of the Note of Issue at

(2"d
this point. Sharpe v. Osorio 800 N.Y.S. 2d 213, 214; 21 A.D. 3d 467, 468 Dept. 2005).

up"
While under ordinary circumstances, the filing of a 90 day notice might "wake a

Plaintiff and force them to act, here Plaintiff and their Counsel have just ignored demands by the

County to appear for depositions and otherwise complete discovery. The effects of that failure

are perilous to unpaid third party healthcare providers and subject the County to wasted

personnel in continuing to prepare for litigation which Plaintiffs themselves apparently have no

interest in pursuing.

POINT FOUR: PLAINTIFF'S PLEADINGS SHOULD BE STRUCK AS PLAINTIFF
HAS FAILED TO ATTEND COURT ORDERED DEPOSITIONS

Pursuant to CPLR 3126(3), the Court may strike the pleadings of a party who refuses to

participate in Court Ordered discovery. It isappropriate to strike a party's pleadings when the

failure to comply with Court ordered discovery is willful and contumacious. Umar v.

(2nd
Ohrnberger 72 A.D. 3d 1066, 900 N.Y.S. 2d 349 Dept. 2013). In the instant case, no

rationale conclusion can be reached except that Plaintiff is willfully ignoring the Court's Orders.

A pattern of conduct over time of obstructing the progress of a case evinces a willful and

contumactious effort to obstruct the ease. Casey v. Casey 39 A.D. 3d, 579, 835 N.Y.S. 2d 277

(2nd
Dept. 2007). Here, from the outset of the filing of the Plaintiff's Notice of Claim, multiple

court appearances and Orders have been necessary to have Plaintiff follow the rules of civil

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procedure. First, Plaintiffs wasted the Court and taxpayers time by refusing to attend the 50-H

hearings. Then itwas wasting the Court and taxpayers time by requiring a Court Order to have

Plaintiffs fully respond to interrogatories. Then itwas wasting the County's time requiring yet

another Motion to respond to those same interrogatories. Then itwas another Court appearance

to have Plaintiffs agree to participate in depositions. Please see Chapman Affirmation at

paragraph 32.

In the instant case, the Court Ordered those depositions to commcñce May 8, 20182. See

Chapman Affirmation at 34. The day before the Court Ordered depositions were to commence,

the Plaintiff delayed the same by making application to the Appellate Division to stay discovery.

Chapman Affirmation at 32.

The County briefly consented to a stay at the Appellate Division in order to submit

Plaintiffs'
opposition papers to motion for a stay. Upon receipt of the County's opposition to a

stay, the Appellate Division withdrew the stay on discovery. See Chapman Affirmation at 37.

The day after the Appellate Division lifted the stay on discovery, the Defendant, through the

undersigned, attempted to reschedule the depositons of Plaintiff. See Chapman Affirmation at

40. Plaintiffs failed to respond and failed to appear at the rescheduled date. See Chapman

Affirmation at 41-43

Plaintiff did not bother to attend the rescheduled deposition; or the depositions

rescheduled after that. See Chapman Affirmation at paragraphs 43-45. Plaintiff did not

respond to the Defendant County's correspondence. See Chapman Affirmation at paragraph 46.

2 2018: "You them (the
Court Transcript of April24, THE COURT: areto start deposities) on May 8*. MR.
MARIA: So the Court is aware,that'sfine. Thank you very much for that,because I need a time
little toget geared
Ireland the 146 You will 96
up, here. I'm away in from tothe 204. THE COURT: do the86, and 106,and then
23rd 24."
May 22"d, May and May Moreover, theCourt had actuallyordered depositionsto occur in 2017, but as
Plaintiffshad refused to fullyrespond to the
iiitciregratüries, 2017 depositions never occurred either.

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Lastly, of course, Plaintiffs never filed the demanded Note of Issue. See Chaptiiari Affirmation at

paragraph 49.

The depositions were undoubtedly Court Ordered and were undoubtedly ignored by

Plaintiffs'
Plaintiffs. conduct throughout the entire case has been to delay for reasons which

have not been understandable but which are clearly willful and contumactious. Plaintiffs

pleadings should be struck.

CONCLUSION

It isappareñt that from the outset of this case, Plaintiff has refused to prosecute this case.

The County continues to be prejudiced by the refusal of Plaintiffs to prosecute this case as do

numerous healthcare providers in the region who, in light of the Orange Regional Medical

decision3
Center v. County of Orange are held hostage by this unresolved case4. Plaintiff

consistently had to be prodded and sometimes Ordered by the Court to take basic steps that civil

Plaintiffs'
litigants must take to advance cases, and even then ignored the Court Orders at own

convenience.

For the foregoing reasons, itis respectfully requested that the Court Dismiss the

Complaint in itsentirety with prejudice, strike the Amended Verified Complaint of Plaintiffs,

3 The that Orange Center case decided.
County agrees the Regional Medical v.County of Orange was properly
4 The not such That other Orange Regional
County does concede any county liabilitytoany prõvidér. said, than
which chose to sue at thetirneitdid,rather thanwait to see thiscase resolved,the rightsof any other partieshave
not been explored and determined.

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and for such other and further relief as to this Court may seem just.

Dated: June 19, 2019

Goshen, NY
Respectfully submitted,

Langdon C. Chapman, Esq.

County Attorney, Orange County
Attorney for Defendant, The County of Orange, New York
255 Main Street

Goshen, NY 10924

(845) 291-3150

To: Joseph Maria, Esq.

Attorney for Plaintiffs
301 Tarrytown Road
White Plains, NY 10603

(914) 684-0333

Kimberly A. Sanford
Harriton & Furrer, LLP,
Attorneys for Defendant New York Correct
Care Solutions Medical Services, P.C.
84 Business Park Drive, Suite 302

Armonk, NY 10504

(914) 730-3400

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Case Info

Judge

Elaine Slobod Track Judge’s New Case

Case No.

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Document Filed Date

June 20, 2019

Case Filing Date

September 23, 2016

County

Parties

CHAPMAN, LANGDON COVERLY Attorney for the Defendants
HASAPIDIS, ANNETTE G. Attorney for the Plaintiff
John Doe 1 Defendant
John Doe 2 Defendant
John Doe 3 Defendant
KYME, GARY P Attorney for the Plaintiff
MARIA, JOSEPH A Attorney for the Plaintiff
MARIA, JOSEPH ANTHONY Attorney for the Plaintiff
New York Correct Care Solutions Medical Services, P.C. Defendant
New York Healthcare Medicine, PLLC Plaintiff
PIERCE, CAROL C. Attorney for the Defendants
Quality Choice Healthcare Inc. d/b/a Quality Choice Correctional Healthcare Plaintiff
RUDOLPH, KENNETH W. Attorney for the Plaintiff
SANFORD, KIMBERLY ANN Attorney for the Defendants
The County of Orange, New York Defendant
FRANCIS MARINELLI Attorneys for Plaintiffs
JOSEPH MARRA Attorney
JOSEPH ARENA Attorneys for Plaintiffs
MICHAEL SUSSMAN Attorney

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