Opinion
October 20, 1992
Appeal from the Supreme Court, New York County (Shirley Fingerhood, J.).
The IAS Court did not err in converting defendants' motion to dismiss into a motion for summary judgment while disclosure requests were still outstanding (cf., Wohlgemuth v Logan, 144 A.D.2d 160).
The action arises out of defendants' denial of plaintiff's application to obtain on-call emergency patient privileges for plastic surgery patients, and defendants' delay in responding to credential information concerning plaintiff from several Arizona hospitals. At the time of the commencement of the action, the Public Health Council had already reviewed and rejected plaintiff's complaint and deemed it to be without merit. In addition, plaintiff was still on the staff of defendant hospital, and had on-call emergency room privileges for head and neck injury patients.
Plaintiff's claims based on the denial of hospital privileges were properly dismissed, as a matter of law, as barred by Public Health Law §§ 2801-b and 2801-c, which limit an aggrieved physician to injunctive relief and bar him from maintaining an action for damages (Saha v Record, 177 A.D.2d 763; Farooq v Millard Fillmore Hosp., 172 A.D.2d 1063; Dolgin v Mercy Hosp., 127 A.D.2d 557). Although medical staff by-laws may form the basis of a claim for breach of contract or intentional interference with contractual relations independent of any claim arising under the Public Health Law (Giannelli v St. Vincent's Hosp. Med. Ctr., 160 A.D.2d 227, 232; see, Del Castillo v Bayley Seton Hosp., 172 A.D.2d 796), plaintiff did not have a contractual right to special access to the plastic surgery on-call list (see, Gelbfish v Maimonides Med. Ctr., 184 A.D.2d 614), and has never maintained that defendant hospital violated any specific provision of its by-laws concerning the criteria to be considered or the procedures to be followed (see, Saha v Record, supra).
The court also properly dismissed plaintiff's claims concerning defendants' delay in responding to requests for references required by Arizona hospitals to which plaintiff had applied for privileges. Plaintiff failed to allege or substantiate that any of the defendants were motivated solely by malice (Burns Jackson Miller Summit Spitzer v Lindner, 59 N.Y.2d 314, 333). In any event this claim is time barred since the Arizona hospital requests were made in 1985 and the action was commenced in January of 1989.
We have considered plaintiff's remaining contentions and find them to be without merit.
Concur — Sullivan, J.P., Milonas, Rosenberger, Ross and Asch, JJ.