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FILED: NEW YORK COUNTY CLERK 04/03/2015 06:58 PM INDEX NO. 156138/2014
NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 04/03/2015
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
BERTON FORMAN, M.D.,
Plaintiff, REPLY
AFFIRMATION
vs.
MERCY MEDICAL CENTER, and CATHOLIC HEALTH Index No. 156138/2014
SERVICES OF LONG ISLAND,
Defendants.
THOMAS S. D’ANTONIO, an attorney admitted to practice before the Courts of this State,
affirms the following to be true, pursuant to CPLR 2106:
1. I am a member of the firm of Ward Greenberg Heller & Reidy LLP, attorneys for
defendants Catholic Health System of Long Island, Inc. (“Catholic Health” or “CHSLI”) and
Mercy Medical Center (“Mercy”) (together, “CHS”). I submit this Reply Affirmation in
opposition to plaintiff’s cross-motion to amend the Complaint, and in further support of CHS’s
motion to dismiss the “First” Amended Verified Complaint, pursuant to CPLR 3211(a)(1), (3),
(5) and (7).
2. Rather than providing cogent legal arguments to support the legitimacy of
plaintiff’s purported causes of action in his opposition papers, plaintiff’s counsel instead engages
in an unfortunate, and inappropriate, ad hominem attack on me. While this appears consistent
with a time worn strategy of attacking an adversary when the desperate litigant has little to say
on either the facts or the law, such a “strategy” is neither constructive nor probative.
3. I do not propose to waste the Court’s time or try its patience by responding in
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kind to this unproductive debate; I do wish, however, to alert the Court to my response that I had
made to the communications included with the opposing Affirmation submitted by plaintiff’s
counsel on this motion—a response he apparently did not see fit to include with his papers.
4. As I noted in that response, attached as Exhibit A, all of the facts that I had
related to the Court at the January 7, 2015 motion hearing were correct, and/or I certainly
believed them to be accurate at the time of the hearing.
5. Specifically, prior to January 7, 2015, I had been informed that Mercy never
received a request to provide information about plaintiff in connection with any application for
medical staff privileges at any other institution, from the time he resigned from Mercy in 2010
until the date of the hearing. I have confirmed the accuracy of that information with Mercy since
that time—and it does not appear that plaintiff makes any claim to the contrary.
6. This information is further confirmed by evidence submitted by plaintiff in the
instant motion. In a letter from Brice Beach to plaintiff’s former attorney, Richard Wofson, Mr.
Beach stated:
[I]t is to my knowledge that Dr. Forman left the Hospital in
February 2010 and no requests were made for such documentation
by either Dr. Forman, or any prospective employers, until…[Dr.
Forman was] advised that the records were inadvertently destroyed
by Iron Mountain [in 2012]….it is to my knowledge that no further
requests were made until [Dr. Forman] retained your services and
you sent your letter (the “Letter”), dated October 8, 2013 to Dr.
Glatt and the Hospital.
(Kutner Aff., Ex. J).
7. Moreover, Kenneth Long, the Vice President for Clinical Service Line and
Physician-Hospital Organization Development at CHS, stated, in his Affidavit, that CHS has “no
record of any request, made by any hospital or other provider, with respect to an application for
medical staff privileges” made on behalf of Dr. Forman….” (Long Aff. at ¶¶ 6-8).
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8. In addition, had Mercy received a request from another institution with respect to
credentials being sought by Dr. Forman there, it would supply “a response with the information
known to it, independent of the content of the credentialing file if that file was unavailable to us
for any reason.” (Long Aff. at ¶¶ 10-12). Mr. Long further confirms that the key information
that an institution would need to review prior to granting staff privileges pursuant to Article 28 of
the Public Health Law can be obtained from sources other than the credentialing file, and CHS
would be able to supply this information had a request been made by another hospital regarding
plaintiff’s application for staff privileges. (Long Aff. at ¶ 10).
9. I further have been informed that, upon learning of the inadvertent destruction of
the credentialing file, Mercy offered to, and did, prepare statements summarizing key pieces of
performance-related information about plaintiff regarding the time he was on the staff at Mercy.
I have also been informed that Mercy would have shared that information upon request with any
third party identified by plaintiff.
10. At the January 7, 2015 hearing, I was unaware that any request to “reconstruct”
the credentialing file had been made on plaintiff’s behalf. I subsequently learned that there had
been discussions between plaintiff’s former counsel and Mercy regarding the inadvertent
destruction of the credentialing file, and Dr. Forman’s lawyer had been told that reconstruction
of the entire file was not achievable. I understand that plaintiff’s counsel was given the
documents reflecting that fact, and reflecting the fact that when he resigned from Mercy in 2010,
he was a physician in good standing.
11. Since the January 7, 2015 hearing, consistent with this Court’s direction, Mercy
has complied as much information as it was able to retrieve about plaintiff’s performance while
at Mercy. I understand that much of this information has already been provided to plaintiff or his
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counsel. Additionally, this information is available at Mercy, and I informed plaintiff’s counsel
that I am prepared to make appropriate arrangements for plaintiff to review this information as
soon as he provides a time that would be convenient for him to visit Mercy for this purpose.
Interestingly, it is my understanding that at no point between January 7, 2015 and the time I sent
my response to Mr. Kutner has Dr. Forman contacted Mercy with respect to the materials it has
assembled, and I have not been contacted by Mr. Kutner since I sent him my response offering to
make that information available. A reasonable inference—and perhaps an inescapable one—is
that the communications to which I recently responded were intended to be self-serving tactical
communications aimed at staving off dismissal of plaintiff’s otherwise weak and unsupportable
claims.
12. However, as demonstrated in defendants’ accompanying Reply Memorandum of
Law, and in their initial Memorandum, plaintiff’s cross-motion to amend the Complaint is
without merit and should be denied, CHS’s motion to dismiss should be granted in all respects,
and the First Amended Verified Complaint should be dismissed in its entirety.
13. Finally, plaintiff should bear responsibility for his conscious choice to proceed with
this lawsuit in spite this Court’s warnings to him at the January 7, 2015 motion hearing. He should
bear the costs of this motion, and the costs of the attorney’s fees and expenses as sanctions under
Part 130 of the Uniform Rules.
Dated: April 3, 2015 /s/ Thomas S. D’Antonio
Thomas S. D’Antonio
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FILED: NEW YORK COUNTY CLERK 04/03/2015 06:58 PM INDEX NO. 156138/2014 NYSCEF DOC. NO. 109 RECEIVED NYSCEF: 04/03/2015 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK BERTON FORMAN, M.D., Plaintiff, REPLY AFFIRMATION vs. MERCY MEDICAL CENTER, and CATHOLIC HEALTH Index No. 156138/2014 SERVICES OF LONG ISLAND, Defendants. THOMAS S. D’ANTONIO, an attorney admitted to practice before the Courts of this State, affirms the following to be true, pursuant to CPLR 2106: 1. I am a member of the firm of Ward Greenberg Heller & Reidy LLP, attorneys for defendants Catholic Health System of Long Island, Inc. (“Catholic Health” or “CHSLI”) and Mercy Medical Center (“Mercy”) (together, “CHS”). I submit this Reply Affirmation in opposition to plaintiff’s cross-motion to amend the Complaint, and in further support of CHS’s motion to dismiss the “First” Amended Verified Complaint, pursuant to CPLR 3211(a)(1), (3), (5) and (7). 2. Rather than providing cogent legal arguments to support the legitimacy of plaintiff’s purported causes of action in his opposition papers, plaintiff’s counsel instead engages in an unfortunate, and inappropriate, ad hominem attack on me. While this appears consistent with a time worn strategy of attacking an adversary when the desperate litigant has little to say on either the facts or the law, such a “strategy” is neither constructive nor probative. 3. I do not propose to waste the Court’s time or try its patience by responding in 1 kind to this unproductive debate; I do wish, however, to alert the Court to my response that I had made to the communications included with the opposing Affirmation submitted by plaintiff’s counsel on this motion—a response he apparently did not see fit to include with his papers. 4. As I noted in that response, attached as Exhibit A, all of the facts that I had related to the Court at the January 7, 2015 motion hearing were correct, and/or I certainly believed them to be accurate at the time of the hearing. 5. Specifically, prior to January 7, 2015, I had been informed that Mercy never received a request to provide information about plaintiff in connection with any application for medical staff privileges at any other institution, from the time he resigned from Mercy in 2010 until the date of the hearing. I have confirmed the accuracy of that information with Mercy since that time—and it does not appear that plaintiff makes any claim to the contrary. 6. This information is further confirmed by evidence submitted by plaintiff in the instant motion. In a letter from Brice Beach to plaintiff’s former attorney, Richard Wofson, Mr. Beach stated: [I]t is to my knowledge that Dr. Forman left the Hospital in February 2010 and no requests were made for such documentation by either Dr. Forman, or any prospective employers, until…[Dr. Forman was] advised that the records were inadvertently destroyed by Iron Mountain [in 2012]….it is to my knowledge that no further requests were made until [Dr. Forman] retained your services and you sent your letter (the “Letter”), dated October 8, 2013 to Dr. Glatt and the Hospital. (Kutner Aff., Ex. J). 7. Moreover, Kenneth Long, the Vice President for Clinical Service Line and Physician-Hospital Organization Development at CHS, stated, in his Affidavit, that CHS has “no record of any request, made by any hospital or other provider, with respect to an application for medical staff privileges” made on behalf of Dr. Forman….” (Long Aff. at ¶¶ 6-8). 2 8. In addition, had Mercy received a request from another institution with respect to credentials being sought by Dr. Forman there, it would supply “a response with the information known to it, independent of the content of the credentialing file if that file was unavailable to us for any reason.” (Long Aff. at ¶¶ 10-12). Mr. Long further confirms that the key information that an institution would need to review prior to granting staff privileges pursuant to Article 28 of the Public Health Law can be obtained from sources other than the credentialing file, and CHS would be able to supply this information had a request been made by another hospital regarding plaintiff’s application for staff privileges. (Long Aff. at ¶ 10). 9. I further have been informed that, upon learning of the inadvertent destruction of the credentialing file, Mercy offered to, and did, prepare statements summarizing key pieces of performance-related information about plaintiff regarding the time he was on the staff at Mercy. I have also been informed that Mercy would have shared that information upon request with any third party identified by plaintiff. 10. At the January 7, 2015 hearing, I was unaware that any request to “reconstruct” the credentialing file had been made on plaintiff’s behalf. I subsequently learned that there had been discussions between plaintiff’s former counsel and Mercy regarding the inadvertent destruction of the credentialing file, and Dr. Forman’s lawyer had been told that reconstruction of the entire file was not achievable. I understand that plaintiff’s counsel was given the documents reflecting that fact, and reflecting the fact that when he resigned from Mercy in 2010, he was a physician in good standing. 11. Since the January 7, 2015 hearing, consistent with this Court’s direction, Mercy has complied as much information as it was able to retrieve about plaintiff’s performance while at Mercy. I understand that much of this information has already been provided to plaintiff or his 3 counsel. Additionally, this information is available at Mercy, and I informed plaintiff’s counsel that I am prepared to make appropriate arrangements for plaintiff to review this information as soon as he provides a time that would be convenient for him to visit Mercy for this purpose. Interestingly, it is my understanding that at no point between January 7, 2015 and the time I sent my response to Mr. Kutner has Dr. Forman contacted Mercy with respect to the materials it has assembled, and I have not been contacted by Mr. Kutner since I sent him my response offering to make that information available. A reasonable inference—and perhaps an inescapable one—is that the communications to which I recently responded were intended to be self-serving tactical communications aimed at staving off dismissal of plaintiff’s otherwise weak and unsupportable claims. 12. However, as demonstrated in defendants’ accompanying Reply Memorandum of Law, and in their initial Memorandum, plaintiff’s cross-motion to amend the Complaint is without merit and should be denied, CHS’s motion to dismiss should be granted in all respects, and the First Amended Verified Complaint should be dismissed in its entirety. 13. Finally, plaintiff should bear responsibility for his conscious choice to proceed with this lawsuit in spite this Court’s warnings to him at the January 7, 2015 motion hearing. He should bear the costs of this motion, and the costs of the attorney’s fees and expenses as sanctions under Part 130 of the Uniform Rules. Dated: April 3, 2015 /s/ Thomas S. D’Antonio Thomas S. D’Antonio 4