.\\i'/% NIXON - PEABODY

Transcription

1 .\\i'/% NIXON - PEABODY NIXON PEABODY LLP ATTORNEYS AT LAW Seth L. Berman Associate T sberman@nixonpeabody.com 50 Jericho Quadrangle Suite 300 Jericho, NY VIA NYSCEF AND (hkingo(&,nvcourts.gov) Hon. Peter H. Moulton Administrative Judge of the Civil Part 60 Centre Street Re: Abdul Q. Malik, M.D. et al., v. Ultraline Medical Testing P.C., et al., Index No /2017 (the "Ultraline Action") Abdul Q. Malik, MD., et al., v. Empire HealthChoice HMO, Inc., et al., Index No /2016) (the "Empire Action") Abdul Q. Malik, MD., et al., v. EmblemHealth, Inc., et al., Index No /2016) (the "Emblem Action") Abdul Q. Malik, MD., et al., v. Heritage New York IPA d/b/a Healthcare Partners, IPA, Index No /2017; Abdul O. Malik, MD., et al., v. Excelsior IPA, Index No /2017 Dear Justice Moulton: This firm represents New York State Catholic Health Plan, Inc., d/b/a Fidelis Care New York ("Fidelis"), a defendant in the Ultraline Action, as defined above. We write in response to the letter to you from Linda J. Clark, Esq., counsel for Plaintiffs in all of the above referenced actions, Abdul Q. Malik, M.D. and Abdul Q. Malik, Physician, P.C. ("Plaintiffs"), dated May 26, In that letter, Ms. Clark requested that the Ultraline Action be reassigned from the Honorable David B. Cohen, J.S.C. to the Honorable Shlomo S. Hagler, J.S.C. In the course of advocating for said transfer, Ms. Clark wrote, inter alia, as follows: Counsel for the parties, including several of the Ultraline Action parties, attended a court conference in the Emblem and Empire Actions on May 8, 2017 at the chambers of Justice Hagler and discussed putting all of these related cases on a common discovery and briefing schedule. No counsel objected.

2 Page 2 This description of events is, at best, incomplete and at worst, misleading at least to the extent Fidelis' position is concerned. First, Ms. Clark omits the fact that the only reason the undersigned was physically present at the May 8, 2017 conference in two actions in which Fidelis is not a party and has not appeared (be it at that conference or otherwise) was because her firm made it an express condition of Fidelis obtaining a reasonable extension of time to respond to the Complaint in the Ultraline Action from April 26, 2017 to June 6, I did not attend the conference because Fidelis had an interest in joining the discovery and/or briefing schedule in the Ultraline Action with those in the Emblem and Empire Actions, as Ms. Clark's letter may imply. This is particularly so because Fidelis intends to move to dismiss the Complaint as against it in the Ultraline Action pursuant to CPLR 3211, such that discovery should be stayed under CPLR 3214(b). I raised that very point to Justice Hagler's law secretary at the May 8th conference when the subject of common discovery schedules for these actions was raised by Ms. Clark and the law secretary agreed that such a motion would delay discovery in the Ultraline Action, in contrast to the status of the Emblem and Empire Actions, where no such impediment to discovery exists. Given this chain of events, for Ms. Clark to represent that "no counsel objected" to the concept of the Ultraline Action being put on a "common discovery and briefing schedule" as the Emblem and Empire Actions is disingenuous. More importantly, Ms. Clark also fails to describe the discussion that was had at the May 8th conference about the concept of transferring the Ultraline Action to Justice Hagler which is the relief she seeks in her letter on behalf of Plaintiffs. When that came up at the conference and Ms. Clark and other counsel asked if we would consent to transfer, the undersigned on behalf of Fidelis explicitly stated that Fidelis would not at that time consent and had not made a decision on whether or not it would consent to a transfer at that time. To make Fidelis' position clear, it objects to the transfer of the Ultraline Action to Justice Hagler. This in no way is intended to be a reflection on Justice Hagler or to suggest a desire to avoid being before him. The reason Fidelis objects is that it appears rather obvious that Plaintiffs are maneuvering either to seek to consolidate or otherwise link all of these actions together solely for their and their counsel's convenience, not for reasons of "judicial efficiency and economy," as Ms. Clark claims. Moreover, these cases are at different stages for example the Emblem and Empire Actions were commenced in 2016 and both cases have involved significant motion practice, including motions for preliminary injunctions. Issue has long been joined in those actions; it has not been joined in the Ultraline Action, and will not be for some time in the future, at least as to Fidelis, given its aforementioned intention to move to dismiss. Also, Plaintiffs and their counsel chose to engage in this piecemeal, scattershot approach to litigation by inexplicably commencing numerous actions over multiple years against various defendants. Now, incredibly, they expect the court system to in essence "fix" it all for them and make it convenient for them to litigate the multiplicity of cases they themselves have wrought.

3 Page 3 In addition, notwithstanding the evident implication by Ms. Clark that these cases are all the same or very similar, in point of fact, they are not. The essence of Plaintiffs' claims against multiple health care plans in most of the above-referenced actions is that these health care plans unlawfully terminated their provider agreements with Plaintiffs upon Dr. Malik's indictment for Medicaid fraud and Plaintiffs' subsequent exclusion from the New York State Medicaid Program. Fidelis, however, never terminated its agreement with Plaintiffs; instead it only suspended him temporarily pending the resolution of the charges against him and his related status as having been excluded from Medicaid. Moreover, Fidelis has lifted that suspension and restored Plaintiffs' status as providers in its network since the indictment was dismissed and Plaintiffs were restored to Medicaid. This places Fidelis in a demonstrably different position than most, if not all, of the HMO defendants in the other actions, including the defendants in the Empire and Emblem Actions, who admittedly terminated Plaintiffs as providers. This and many other points demonstrating why Plaintiffs' claims do not lie against Fidelis will amply be established in Fidelis' motion to dismiss that will be filed and served on June 6th. Based on the foregoing, Fidelis believes that there are distinguishable issues of law and fact involved in the Ultraline Action as compared to the other actions referenced above. Fidelis therefore believes it would be unfair, inappropriate and potentially prejudicial to it for the Ultraline Action to be transferred to Justice Hagler. Accordingly, Fidelis respectfully objects to the transfer of the Ultraline Action to Justice Hagler. Re ectfully, Seth L. Berman SLB

4 Page 4 cc: VIA NYSCEF AND Hon. Shlomo S. Hagler, J.S.C. 60 Centre Street, Room, Room 631 jcohen@nycourts.gov Hon. David B. Cohen, J.S.C. 60 Centre Street, Room, Room 1164A Carlos G. Manalansan, Esq. Assistant General Counsel EmblemHealth, Inc. Legal Department 55 Water Street, 13th Fl. (Rm. 13F15) New York, NY CManalansan@emblemhealth.com Attorneys for EmblemHealth, Inc., et al. Howard S. Wolfson, Esq. Morrison Cohen LLP 909 Third Avenue hwolfson@morrisoncohen.com New York, New York Attorneys for Empire HealthChoice HMO, Inc., et al. Christopher Cardillo, Esq. Christopher Cardillo, P.C rd Avenue, Suite 308 Brooklyn, NY cardilloesq@gmail.com Attorneys for Ultraline Management, Inc., et al. Douglas Schneider, Esq. Summers & Schneider, P.C th Avenue New York, New York douglas@summersandschneider.com Attorneys for Charles Master, M.D.

5 Page 5 Carolyn Kruk, Esq. Corporation Counsel of the City of New York 100 Church Street, Room New York, New York cicruk@law.nyc.gov Attorneys for Metroplus Health Plan, Inc. Michael Bernstein, Esq. Matthew P. Mazzola Sedgwick LLP 225 Liberty Street 28th Floor New York, NY michael.bernstein@sedgwicklaw.com Attorneys for Unitedhealthcare of New York, Inc., et al.