PRESENT: HONORABLE LEONARD B. AUSTIN Justice Submission Date: Uniondale, New York II against - COUNSEL FOR DEFENDANT ORDER

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1 SUPREME COURT - STATE OF NEW YORK IAS TERM PART 23 NASSAU COUNTY INDEX NO PRESENT: HONORABLE LEONARD B. AUSTIN Justice Motion RID: Submission Date: Motion Sequence No.: O01,002/MOT D WINTHROP-UNIVERSITY HOSPITAL, COUNSEL FOR PLAINTIFF Plaintiff, Farrell Fritz, PC EAB PLAZA -WEST TOWER - 14TH FI. Uniondale, New York II against - COUNSEL FOR DEFENDANT Lifshutz, Polland & Hoffman, PC BASSIEMA B. IBRAHIM, 220 East 42 d Street - Suite 435 Defendant. New York, New York c ORDER The following papers were read on Plaintiff s motion pursuant to CPLR 3211 (b) dismissing Defendant s first and second affirmative defenses and pursuant to CPLR 3211 (a) (7) dismissing Defendant s third, fourth and fifth counterclaims and Defendant s cross-motion pursuant to CPLR 3212 granting Defendant summary judgment dismissing the action and granting summary judgment on the second counterclaim: Notice of Motion dated August 8, 2002; Affirmation of Eric W. Penzer, Esq. dated August 8,2002; Affidavit of Linda Brescia sworn to on October 25, 2002; Plaintiff s Memorandum of Law ; Notice of Cross-motion dated September 12, 2002; Affidavit of Bassiena B. lbrahim sworn to on September 10, 2002; Affirmation of Edward J. Yun, Esq. dated September 12, 2002; Defendant s Memorandum of Law; Affidavit of Linda Brescia sworn to on October 25, 2002; Affirmation of Eric W. Penzer, Esq. dated October 25, 2002; 1

2 Plaintiff s Reply Memorandum of Law; Affidavit of Bassiena B. lbrahim sworn to on November 5, 2002; Defendant s Reply Memorandum of Law; Transcript of Oral Argument held before this Court on March 14, Plaintiff moves for an order pursuant to CPLR 3211 (b-) dismissing Defendant s first and second affirmative defenses and for an order pursuant to CPLR 3211 (a)(7) dismissing Defendant s third, fourth and fifth counterclaims. Defendant cross-moves for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint and in favor of the Defendant on Defendant s second counterclaim BACKGROUND Plaintiff Winthrop University Hospital ( Winthrop ) operates a teaching hospital in Mineola, New York. Defendant Bassiema B. lbrahim ( Dr. Ibrahim ) is a physician duly licensed to practice medicine in the State of New York. By agreement dated April 22, 1994, Winthrop hired Dr. lbrahim as of July 1, 1994 as the Director of Telemetry Services in its Division of Cardiology Services. In that capacity, Dr. lbrahim was a salaried employee of Winthrop. Paragraph 3 of the employment agreement established Dr. Ibrahim s duties and responsibilities as Director of Telemetry Services as being exclusively administrative and teaching in nature. This included teaching students, residents and fellows, supervising professional and non-professional staff, serving on committees and 2

3 performing such other duties and responsibilities as were assigned to her by Winthrop. She was required to devote at least 40 hours per week to her duties and responsibilities as Director of Telemetry Services. In addition, to her duties under the employment agreement, Dr. lbrahim was permitted to engage in private practice as an independent contractor provided that such practice did not interfere with her duties as Director of Telemetry Services. Under this aspect of the agreement, Dr. lbrahim was permitted to retain the first $75, of her annual income derived from her private practice. This base sum was later increased to $83, All income generated by Dr. lbrahim in her private practice above these base amounts was to be paid over to Winthrop. Twenty percent (20%) of these funds would be placed in the Electrophysiology Physicians Fund ( Fund ) to be shared equally by all electrophysiology physicians at the hospital. The remaining 80% was to be paid over to Winthrop to compensate it for expenses incurred in connection with Dr. Ibrahim s private practice and to permit Winthrop to foster and promote its faculty practice, teaching and research programs. All billings and collections in connection with Dr. Ibrahim s private practice were performed by Winthrop. In addition, Winthrop provided Dr. lbrahim with office space and secretarial assistance for her private practice. Winthrop also provided Dr. lbrahim with the equipment and supplies required for her private practice, paid the premiums for her medical malpractice insurance and reimbursed her for out of pocket expenses incurred in connection with her private practice. 3

4 The agreement was for a period of one year. After one year, the agreement could be terminated by either party, at any time, without cause or reason upon providing the other party with 30 days advanced written notice. Dr. lbrahim rendered medical services in her private practice from the beginning of the agreement in 1994 through July, 2001, when she terminated her association with Winthrop. For the years 1994, 1995, and 1997, Dr. lbrahim was the only physician contributing to the Fund. Therefore, during these years, those moneys paid into the Fund were paid back to her. During the years 1996, 1998, 1999 and 2000, two doctors, Dr. lbrahim and Dr. -- Cohen, made contributions to the Fund. In each of these years, Winthrop asserts that Dr. lbrahim received more money from the Fund than she contributed. All of Dr. Ibrahim s billing for her private practice was done under her personal provider number. She was never a member of any partnership, professional corporation, university practice corporation or university faculty practice corporation or group practice while she was affiliated with Winthrop. Winthrop commenced this action seeking to recover the amount that Dr. lbrahim was required to contribute to the Fund and to reimburse Winthrop for the expenses incurred in connection with her private practice and its expenditures to foster and promote its faculty practice during the period of 2001 during which Dr. lbrahim was affiliated with Winthrop.

5 In her answer, Dr. lbrahim denied the material allegations of the complaint, alleged two affirmative defenses and five counterclaims. The first affirmative defense alleges that the portion of the agreement that requires Dr. lbrahim to contribute to the Fund -and to compensate Winthrop for its expenses incurred in connection with her private practice and to foster and promote Winthrop s faculty practice and research violates the New York State anti-fee splitting statutes; to wit: Education Law 6509-a, 6530, and,6531. The second affirmative defense asserts that these contractual provisions violate the Federal anti-kickback law; to wit: 42 U.S.C. I 320a-7b. The first counterclaim seeks to recover money allegedly due to Dr. lbrahim for the year 2001 from the Fund. The second counterclaim alleges a claim for conversion alleging that Winthrop received and retained funds paid by private insurers for medical services rendered by Dr. lbrahim after she terminated her affiliation with Winthrop. The third counterclaim alleges that the independent contractor portion of the agreement between Winthrop and Dr. lbrahim was an unenforceable contract and that Winthrop was unjustly enriched by receiving payments under this contract. The fourth counterclaim alleges that Dr. Ibrahim s agreement with Winthrop was illegal and that Dr. lbrahim is entitled to recover that money from the hospital in quantum meruit. The fifth counterclaim seeks an accounting of all revenues collected by Winthrop on behalf of lbrahim from 1994 to the termination of her affiliation with Winthrop. 5

6 C. Plaintiff s Motion to Dismiss the Third, Fourth and Fifth Counterclaims When deciding a motion made pursuant to CPLR 3211 (a) (7) to dismiss for failure to state a cause of action, the Court must view the allegations in the pleadings and the submissions inopposition to the motion in a light most favorable to the pleader. See, Leon v. Martinez, 84 N.Y. 2d 83 (1992). The facts as alleged in the pleading must be accepted as true, and the pleader must be given the benefit of every favorable inference which may be drawn from the pleadings. Dve v. Catholic Medical Center of Brooklvn and Queens, Inc., 273 A.D.2d 193 (2nd Dept. 2000). If any cause of action can be discerned from the pleadings, the motion to dismiss must be denied. Rovello v. Orofino Realtv Co., Inc., 40 N.Y. 2d 633 (1976). 1. Accounting (Fifth Counterclaim) In order to maintain an action for an accounting, the party seeking the accounting must establish that a fiduciary or trust relationship exists. Schantz v. 148 (1900). See also, Darlaqiannis v. Darlaqiannis, 48 A.D. 2d 875 Oakman, 163 N.Y. (2 d Dept. 1975). The relationship between Dr. lbrahim and Winthrop created by their written agreement does not create a fiduciary relationship. See, Michnick v. Parke11 Products, Inc., 215 A.D. 2d 462 (2 d Dept. 1995). The fact that Winthrop may owe money to Dr. lbrahim pursuant to the terms of the agreement does not in and of itself create a fiduciary relationship. Waldman v. Enslishtown Sportswear, Ltd., 92 A.D. 2d 833 (lst Dept. 1983). 11

7 DISCUSSION A. Standard on Motion to Dismiss Affirmative Defenses When deciding a motion made pursuant to CPLR 3211 (b) seeking to strike an affirmative defense, the court must view the allegation made in the answer in a light most favorable to the Defendant. 182 Fifth Avenue, LLC v. Desiqn Development Concepts, Inc., 300 A.D.2d 189 (lst Dept. 2002); and Gruder v. Recckio, 138 A.D.2d 923 (4th Dept., 1988). All of the Defendant s allegations must be deemed true and the Defendant is entitled to all reasonable inferences which may be drawn from the pleadings and proof. Pellearino v. Millard Fillmore Hosp., 140 A.D.2d 954 (4 h Dept. 1988). If there is any doubt as whether the defense has merit, the motion must be denied. Pellearino v. Millard Fillmore Hosp., supra, Duboff v. Board of Hiaher Education of the Citv of New York, 34 A.D.2d 824 (2 d Dept. 1970). 1. First Affirma the Defense Defendant s first affirmative defense alleges that her agreement with Winthrop violated the New York State anti-fee splitting statutes. Education Law 6509-a, 6530 and The anti-fee splitting statutes do not to apply to faculty medical practice plans and agreements such as the one which Dr. lbrahim had with Winthrop. Albanv Medical Colleqe v. McShare, 104 A.D.2d 119 (3 Dept.), aff d., 66 N.Y.2d 982 (1985). See also, Dolin v. Lonq Island Jewish Medical Center, 139 A.D.2d 487 (2 d Dept. 1988). In these cases, the courts concluded that the New York anti-fee splitting statutes do not apply to 6

8 the fees that are earned by faculty members or physicians who conduct a private practice under the auspices, and through the facilities of, a hospital. Dr. Ibrahim s agreement with Winthrop is closely similar to the agreement which was upheld by the Dolin Court. In Dolin, Plaintiff was a full time employee of Long Island Jewish Medical Center. He was permitted to augment his income through a I private practice income earned under the Defendant s faculty practice plan. Dr. Dolin was compensated for his private practice patients based upon a formula adopted by Long Island Jewish Hospital. When he terminated his employment with the hospital, Dr. Dolin commenced an action seeking to recover additional amounts due for services rendered in connection with his private practice claiming that the agreement violated the..~ New York State anti-fee splitting statutes. The Second Department held that such an agreement does not violate those statutes. Dr. Ibrahim s reliance upon Adrich v. Trustees of Columbia University, 193 Misc.2d 120 (Sup.Ct., N.Y. Co. 2002) is misplaced. The challenged agreement in Adrich required Plaintiffs, who were attending physicians at the Columbia Presbyterian Hospital and unpaid, clinical professors at Columbia s medical school, to pay 10% of their income, earned from any source, to the medical school, as a Dean s Tax as a condition of their retaining their positions as clinical professors and to be able to have admitting and treating privileges as attending physicians. Such an agreement was found to constitute a prohibited fee splitting arrangement because it required Plaintiffs to pay a portion of the income they earned from their private practice and which was 7

9 wholly unrelated to the medical school or the hospital to the school. The key factors that the Adrich Court used to distinguish its facts from McShane was that, in McShane, the school and hospital provided Dr. McShane with office space, equipment, supplies, clerical, secretarial and technical help and paid the doctor s medical malpractice insurance all at the school s expense. On the other hand, in Adrich, the individual doctors paid all of these expenses, the school incurred none of these expenses and provided these Plaintiff s with nothing more than the same hospital privileges provided to other non-faculty physicians. The same factors which enabled the finding that the agreements in McShane and Dolin did not violate the anti-fee splittinmutes are present in this case. Dr. lbrahim was a full time employee of Winthrop. Pursuant to her agreement with Winthrop, she was permitted to conduct a private practice at the hospital provided that it did not conflict with her duties as Director of Telemetry Services. Winthrop provided Dr. lbrahim with office space, equipment, supplies, clerical, secretarial and technical help and paid her medical malpractice insurance premiums. Her billing, while done under her private billing number, was done by hospital staff. She was reimbursed by the hospital for out of pocket expenses incurred in connection with her private practice. These same factors distinguish this case from Adrich. (193 Misc. 2d at 128.) For the foregoing reasons, Plaintiff s motion to strike Defendant s first affirmative defense must be granted.

10 WINTHROP UNlVERSITY HOSPITAL v. IBRAHIM 2. Second Affirmative Defense Plaintiff also moves to strike Defendant s second affirmative defense which alleges that her agreement with Winthrop violates the Federal anti-kickback statute. 42 U.S.C. 1320a-7b. Agreements such as Dr. Ibrahim s have been held not to constitute a violation of this statute. See, Zador v. Millard Fillmore H OSP., 261 Dept. 1999). A.D.2d 876 (4 h Defendant attempts to distinguish Zador by asserting that Dr. Zador assigned all of his Medicare Part B payments to the hospital while Dr. lbrahim was required to pay only a percentage of her Medicare Part B payments received in excess of either her - $75, or $83~, base to Winthrop. However, Dr. lbrahim fails to take into account that Dr. Zador was compensated for his services on a flat fee schedule based upon the services rendered. Dr. Zador was receiving a portion of the Medicare Part B payments received by the hospital as his compensation. Dr. lbrahim fails to explain how a fixed amount differs from a percentage for the purposes of the anti-kickback statute. In addition, the Federal anti-kickback statute does not provide for a private cause of action. Violation of this statue is a crime. Donovan v. Rothman, 106 F.Supp. 2d 513 (S.D.N.Y. 2000). If the court were to permit Dr. lbrahim to assert violation of the Federal anti-kickback statute as an affirmative defense, it would be improperly providing her a private right based upon this criminal statute. Furthermore, the Federal anti-kickback statute makes criminal the provision of 9

11 remuneration to another person for referrals. In this case, the Plaintiff is required to pay a percentage of the fees she received for medical services she performed. The percentage she was paying to Winthrop was not based upon referrals. Furthermore, the amount was paid to Winthrop and not a referring physician. Since payment was not made directly to the referring physician, and Winthrop is not receiving payment based upon referrals, the agreement between Dr. lbrahim and Winthrop does not violate the Federal anti-kickback statute. See, United States ex. rel. Obert-Hong v. Advocate r Health Care, 211 F. Supp. 2d 1045 (N.D. Ill, 2002). Therefore, Winthrop s motion to strike Defendant s second affirmative defense should be granted. _ B. Defendant s Cross-Motion for Summarv Complaint Judqment Dismissinq the - For the same reasons that the Court has concluded that Dr. Ibrahim s first and second affirmative defenses are without met-ii and should be stricken, the Court must deny her motion for summary judgment dismissing this action as being barred by these statutes. These statutes are not applicable to the employment agreement between Dr. lbrahim and Winthrop. Thus, they cannot serve as a basis for the dismissal of the complaint. Therefore, Defendant s motion for summary judgment dismissing the complaint must, as a matter or law, be denied. 10

12 A hospital is not a fiduciary of the doctor. Dr. lbrahim did not entrust money to the hospital as her agent. The agreement between Dr. lbrahim and Winthrop did not create a joint venture. The doctor did not agree to share in any losses sustained by the hospital. She was, however, permitted to retain an amount earned in her private practice and a percentage of the balance earned in excess of that amount. These facts do not create a fiduciary relationship for which an accounting can be demanded. Stevens v. St. Joseph s Hosp., 52 A.D. 2d 722, (4th Dept. 1976). 2. Quantum Merit (Fourth Counterclaim) Dr. Ibrahim s fourth counterclaim seeks to recover from Winthrop in quantum merit. This claim is premised upon Dr. Ibrahim s agreement with Winthrop being unenforceable because it is violative of New York s fee splitting statute, the Federal antikickback statute or on the ground that the agreement is unconscionable. Where the parties relationship is governed by a written agreement, a party may not recover in quantum meruit unless the written agreement is set aside. SAA-A. Inc., v. Morqan Stanlev Dean Witter& Co., 281 A.D. 2d 201 (lst Dept. 2001); and Enriaue Printina 1997). & Publishins Co., Inc.. v. Vantaqe Graphics, Inc., 245 A.D. 2d 259, (2nd Dept. Neither the New York State fee splitting statute nor the Federal anti-kickback statute are inapplicable and neither renders Dr. Ibrahim s agreement with Winthrop void. Thus, the only basis upon which recovery could be had in quantum merit would be if Dr. Ibrahim s agreement with Winthrop was set aside as being unconscionable. 12

13 To void a contract as unconscionable, the party seeking to do so must establish that he/she was deprived of any meaningful choice when entering into the contract and that the terms of the contract unreasonably favor the other party either on procedural or substantive grounds. Gillman v. Chase Manhattan Bank, N.A., 73 N.Y. 2d 1 (1988). The first focus is on whether the contract is procedurally unconscionable based upon I... whether deceptive or high-pressured tactics were employed, the use of fine print in the contract, the experience and education of the party claiming unconscionability and whether there was disparity in bargaining power. Id. at 11. See also, State of New York v. Wolowitz, 96 A.D. 2d 47 (2nd Dept. 1983). The second focus is on whether the contract is substantively unconscionable. That is, the terms were unreasonably favorable against whom unconscionability is urged. Gillman v. Chase Manhattan Bank, supra at 12. See also, Brower v. Gateway 2000, Inc., 246 A.D. 2d 246 (I Dept.1998); and Matter of the State of New York v. Avco Financial Services, 50 N.Y. 2d 383 (1980). Unconscionability is rarely applicable in commercial settings where the parties are presumed to be bargaining at arm s length and to be of relatively equal bargaining power. Master Lease Corp., v. Manhattan Limousine, Ltd., 177 A.D. 2d 85 (2nd Dept. 1992); and Gillman v. Chase Manhattan Bank, N.A., 135 A.D.2d 488 (2 d Dept.l987), affd., 73 N.Y.2d 1 (1988). Dr. Ibrahim s agreement with Winthrop was neither procedurally nor substantively unconscionable. She does not place before the court any evidence that Winthrop used 13

14 high pressure or deceptive tactics or that she lacked the educational background or experience to understand the terms of the agreement. The terms of the contract are contained in a clear, unambiguous two page letter. There is no evidence that the terms of the agreement were unreasonably favorable to Winthrop. In fact, during several years during which the agreement was viable, Dr. lbrahim received more money from the Fund than she contributed. Since the relationship between Dr. lbrahim and Winthrop is governed by a written agreement and there is no basis to void that agreement, Dr. lbrahim cannot recover on the theory of quantum meruit. Therefore, her fourth counterclaim must be dismissed. 3. Unjust Enrichment (Third Counterclaim) The essential inquiry in any action for unjust enrichment or restitution is whether it is against equity and good conscience to permit the Defendant to retain what is sought to be recovered (citations omitted). Paramount Film Distributina Corp. v. State of New York, 30 N.Y. 2d 415,412 (1972). See also, Cohn v. Rothman-Goodman Manasement Corp., 155 A.D. 2d 579 (2 d Dept.1989); and 22A NYJur. 2d Contracts In making such a determination, the court must consider the relationship between the parties and the circumstances surrounding the transfer. Matter of Wieczorek 186 A.D. 2d 204 (2nd Dept.1992). Recovery for unjust enrichment is based upon a quasi-contract theory. Recovery cannot be obtained for unjust enrichment unless the written agreement between the 14

15 parties has been rescinded, is unenforceable or abrogated. Waldman v. Enalishtown Sportswear, Ltd., supra at 836. In this case, the parties relationship is governed by their written agreement which has not been rescinded, abrogated or found to be unenforceable. Therefore, Dr. lbrahim cannot recover the moneys she paid to Winthrop during the term of her affiliation with the hospital on the theory of unjust enrichment. Thus, her third counterclaim must be dismissed. However, the third counterclaim does set forth a valid claim to recover the money received and retained by Winthrop for medical services rendered by Dr. lbrahim after she terminated her affiliation with the hospital. See, State of New York v. Barclavs Bank of New York, 76 N.Y. 2d 533 (1990); and Podolskv v. Citation Abstract, Inc., 279 A.D. 2d 559 (2nd Dept. 2001). Winthrop had no apparent right to receive or retain any of the money Dr. lbrahim earned for the medical services she provided to her patients after she terminated her affiliation with the hospital. Therefore, to the extent that the third counterclaim seeks to recover money received and retained by Winthrop for medical services rendered by Dr. lbrahim after she terminated her affiliation with the hospital, the third counterclaim sets forth a valid cause of action and should not be dismissed. D. Defendant s Motion for Summarv Judament on the Second Counterclaim Dr. lbrahim seeks summary judgment on her second counterclaim which alleges that Winthrop converted payments received from private insurance companies for medical services rendered by her after she terminated her affiliation with Winthrop. 15

16 Summary judgment is a drastic remedy which will be granted only when it is clear that no triable issues of fact exist. Alvarez v. Prospect Hosp., 68 N.Y. 2d 320 (1986); and Andre v. Pomerov, 35 N.Y. 2d 361 (1974). The moving party must make a prima facie showing of entitlement to judgment as a matter of law. Zuckerman v. Citv of-new York, 49 N.Y. 2d 557 (1980). Once the movant has made a prima facie showing of entitlement to judgment as a matter of law, the party opposing the motion must come forward with proof in evidentiary form establishing that there are triable issues of material fact or demonstrate an acceptable reason for failing to do so. Zuckerman v. City of New York, supra; and Bras v. Atlas Construction Co., 166 A.D. 2d 401 (2nd Dept. 1990). If the party moving for summary judgment fails to make a prima facie showing of entitlement to judgment as a matter of law, the motion must be denied. Lescovich v. 180 Madison Avenue Corp., 81 N.Y. 2d 982 (1993); and Winearad v. New York University Medical Center, 64 N.Y. 2d 850 (1985). See also, Slade v. Amerada Hess Corp., - A.D. 2d -, 756 N.Y.S. 2d 907 (2 d Dept. 2003); and Ron v. New York City Housing Auth., 262 A.D. 2d 76 (lst Dept. 1999). Conversion is any unauthorized exercise of dominion or control over property by one who is not the owner of the property which interferes with and is in defiance of a superior possessor-y right of another in the property. Meese v. Miller, 79 A.D. 2d 237, 242 (3 Dept.1981). See also, State v. Seventh Reaiment Fund, Inc., 98 N.Y. 2d 249 (200); and Galtieri v. Kramer, 232 A.D. 2d 369 (2nd Dept.1996). An action in conversion 16

17 seeks recover of a specific item of personal property. Fiorenti v. Central Emeraencv Phvsicians, PLLC, - A.D. 2d -, 2003 WL (2nd Dept. 2003); and Roemer and Featherstonhauqh. P.C., v. Featherstonhauqh, 267 A.D. 2d 697 (3rd Dept.1999); 23 N.Y. Jur. 2d Conversion 5 4. A check has no validity until it is delivered. A payee must have either actual or constructive possession of a check in order to have obtained the status as a holder and thereby acquire an interestpin it. State of New York v. Barclavs Bank of New York, supra; and Pellicio v. Hartford Life Ins. Co., 215 A.D. 2d 635 (2 d Dept. 1995). In this case, Dr. lbrahim never had either actual or constructive possession of the checks sent by the insurance companies in payment for services rendered after she terminated her affiliation with Winthrop. Therefore, she never acquired a right in these checks. As a result, she has failed to establish a necessary element of her claim for conversion, an interference with her right of possession. Matter of White v. Citv of Mount Vernon, 221 A.D.2d 345 (2nd Dept. 1995); and Meese v. Miller, supra. Since Dr. Ibrahim has not established a prima facie entitlement to judgment as a matter of law, her motion for summary judgment on her second counterclaim cannot be granted. Accordingly, it is, ORDERED, that Plaintiff s motion for an order pursuant to CPLR 3211 (b) dismissing Defendant s first and second affirmative defenses is granted; and it is further ORDERED, that Plaintiff s motion for an order pursuant to CPLR 3211 (a)(l) dismissing Defendant s third, fourth and fifth counterclaims is granted to the extent that 17

18 Defendant s fourth and fifth counterclaims are dismissed and Defendant s third counterclaim is dismissed only to the extent that it seeks to recover money paid by Defendant to Plaintiff prior to the time she terminated her affiliation with Plaintiff; and it is further, ORDERED, that Defendant s cross-motion for an order pursuant to CPLR 3212 granting Defendant summary judgment dismissing this action is denied; and it is further, ORDERED, that Defendant s cross-motion for an order pursuant to CPLR 3212 granting Defendant sum mary judgment on her second counterclaim is denied; and it is further, ORDERED, that counsel for the parties are directed to appear before the Court for a Preliminary Conference on July 16, 2003 at 9:30 a.m. This constitutes the decision and Order of the Co rt. Dated: Mineola, NY June 23,2003 A@:. Hon. LEONARD B. AUSTIN, J.S.C. 3UN