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FRIEDLANDER v. CIMINO

December 2, 1974

Daniel FRIEDLANDER et al., Plaintiffs,
v.
Joseph CIMINO, M.D., Individually and as Commissioner of the Department of Health of the City of New York, et al., Defendants



The opinion of the court was delivered by: BONSAL

MEMORANDUM

 BONSAL, District Judge.

 Plaintiffs, suing as a class, allege that they are nonphysician self-employed clinical laboratory directors in the City and State of New York. They claim that their rights under the Fifth and Thirteenth Amendments and the due process and equal protection clauses of the Fourteenth Amendment to the United States Constitution have been violated because they are required by State law, and within New York City by corresponding City ordinance, to perform proficiency tests on specimens prepared by the City or State defendants. Jurisdiction is asserted under 28 U.S.C. § 1343(3).

 After filing answers denying plaintiffs' allegations, the City and State defendants, consisting of the respective departments of health and their commissioners, each move for judgment on the pleadings pursuant to F.R.Civ.P. 12(c) and in the alternative for summary judgment under F.R.Civ.P. 56. The Federal defendants, the Department of Health, Education and Welfare and its Secretary, filed an answer denying plaintiffs' allegations, but have not filed a motion to dismiss.

 THE STATUTES

 Article 5 of Title V of the New York Public Health Law and Article 13 of the New York City Health Code provide in pertinent part that each clinical laboratory, (and its director), must obtain a permit authorizing the tests it seeks to perform.* To retain its permit, each clinical laboratory must participate in a proficiency testing program under which it is required to analyze chemical specimens sent by the State or City and then to report the results. The results are graded by the appropriate governmental agencies. A laboratory which repeatedly fails to perform sufficiently accurate tests will lose its permit.

 The State statute exempts from the permit requirement and the proficiency testing program all laboratories operated by a licensed physician, osteopath, dentist or podiatrist who performs or whose employees perform laboratory tests or procedures "solely as an adjunct to the treatment of his own patients." N.Y.Pub.Health Law § 579 (McKinney 1971). The New York City Health Code exempts only licensed physicians and their employees who perform tests in connection with the treatment of their own patients. N.Y.C. Health Code § 13.03(a).

 The New York City Health Code provides in addition that if a laboratory determines that a test specimen is defective or contaminated, it need only report that fact to the City Department of Health and may discontinue the test. Id. § 13.25.

 THE COMPLAINT

 The complaint alleges in the First Cause of Action that the proficiency tests constitute a seizure of property in the form of labor and materials without compensation under color of State law and in violation of due process of law and the Thirteenth Amendment to the United States Constitution. Plaintiffs seek damages in the amount of $1,000,000 from each defendant.

 In the Second Cause of Action plaintiffs seek a permanent injunction pursuant to 42 U.S.C. § 1983 enjoining defendants from requiring plaintiffs to perform any further proficiency tests.

 In the Third Cause of Action plaintiffs alleged that the plaintiff class has been denied equal protection of the laws because they must comply with the testing requirements while licensed physicians (and, outside New York City, osteopaths, dentists and podiatrists) do not. Plaintiffs also allege that the City and State permit physicians to operate clinical laboratories or perform tests for other physicians' patients in violation of the applicable laws.

 DEFENDANTS' MOTIONS FOR JUDGMENT ON THE PLEADINGS

 Defendants move for a judgment on the pleadings on the ground that the plaintiffs fail to state a substantial federal question upon ...


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