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August 4, 1982

BERT KANWIT, Defendant

The opinion of the court was delivered by: KNAPP



 The various claims set forth in the complaint in this diversity action arose out of a prolonged and bitter dispute between the defendant, a member and sometimes chairman of the "Peer Review Committee" (the "Committee") of the Dutchess County Medical Society (the "Society"), and the plaintiff, a member of that Society. After the case had been pending for about three and one-half years and exhaustive discovery (including thirteen depositions) had been taken, the defendant moved before Judge Lasker for summary judgment. *fn1" Thereafter -- for reasons having nothing to do with the merits of the case -- Judge Lasker became disqualified, and the matter was referred to us. For reasons which follow we grant the defendant's motion.



 The Dutchess County Medical Society is a private, voluntary, professional society whose membership consists of physicians practicing in Dutchess County, New York. The Society's Peer Review Committee -- like its counterparts in similar societies throughout the state -- is a sounding board for concern over the quality of patient care. Its official purposes, set forth in its By-Laws, include protecting the public from incompetent, corrupt, dishonest or unethical physicians; and defending physicians against ill-founded and unjust accusations. In pursuit of these goals, it both accepts complaints from all "responsible" sources, and undertakes to recommend appropriate action.

 In April of 1975, during defendant's tenure as chairman, the Peer Review Committee received a letter from Metropolitan Life Insurance Company (an insurer under a group "covered medical expenses" policy) complaining about certain fees, charged by plaintiff for endo-sinal and endo-nasal surgery, for which Metropolitan was responsible under its policy. In the following month a second such letter was received from Metropolitan and a third from Bankers Life Company. Defendant notified plaintiff of one of these letters. Plaintiff made a five page response which set forth in detail his surgical techniques; extolled their "tremendous advantages" over usual procedures; and requested the opportunity to present a graphic demonstration to members of the Committee. This request was denied.

 Allegedly at defendant's instigation, the Peer Review Committee undertook a broad-ranging investigation which covered not only the fees plaintiff charged, but also the propriety of his medical procedures. According to plaintiff, this investigation went way beyond any legitimate necessity and therefore must have been primarily motivated by defendant's personal malice towards him. Plaintiff complains in particular of the failure to refer the fee inquiries to someone in his own specialty, as required by the Committee's By-Laws; the refusal to accord him a hearing as further required by those By-Laws; *fn2" and the fact that through December of 1975 in pursuit of the investigation, defendant -- over plaintiff's objection -- wrote letters to various educational institutions and other third parties requesting evaluation of plaintiff's medical procedures. *fn3" Two of these letters in particular -- those to Dr. Lawrence Savetsky, Assistant Professor of Clinical Otolaryngology at Columbia University and Chief of the Otolaryngology at Columbia University and Chief of the Otolaryngology Clinic at Presbyterian Hospital, *fn4" and to Dr. George Nager, Professor of Laryngology and Otology at Johns Hopkins -- contained material which, if not privileged, might well be deemed libelous.

 Replies were ultimately received from Dr. Schuknect of the Massachusetts Eye and Ear Infirmary; Dr. Work, Chairman of the Department of Otorhinolaryngology at the University of Michigan; Dr. Daly, Professor of Otolaryngology at New York University; an unidentified individual at the Surgical Group of Poughkeepsie; and Doctors Savetsky and Nager. The letter from Dr. Daly -- who stated that he knew plaintiff personally and may have had him as a student -- was relatively positive in tone. The letter from Dr. Work was entirely neutral, containing only recommended charges for the operations in question. Responses from Doctors Schuknect, Savetsky and Nager (only the latter two of whom were deposed), as well as that from the Poughkeepsie Surgical Group were mildly to severely critical of plaintiff's charges and surgical procedures.

 Further meetings of the Peer Review Committee were held; and on March 16, 1976 fee recommendations were communicated to the insurance companies.

 Two days later -- on March 18, 1976 -- defendant wrote a letter to plaintiff which in effect summarized the activities of the Committee, and advised that the Committee's determination had been substantially unfavorable to plaintiff. *fn5" In addition, the letter contained the following statement now claimed to be libelous:

"Furthermore, the Committee is aware of the fact that a considerable number of your patients have not had a satisfactory result, based on follow-up experience of internists, allergists, neurologists and dentists."

 This letter was dictated by defendant to the executive secretary of the Society -- who, as its sole full-time employee, had attended all meetings of the Peer Review Committee at which plaintiff was discussed, and done all the secretarial work required to send out the letters to third-party consultants. So far as is known, no other person except plaintiff saw the March 18 letter.

 Upon receipt of that letter, plaintiff informally sought access to the files of the Committee's investigation. Failing in that endeavor, he instituted against the instant defendant, the Peer Review Committee and the Dutchess County Medical Society an Article 78 proceeding in New York Supreme Court to obtain such access and in addition to secure a declaration that the Committee's "determination" was null and void. He successfully contested a motion to dismiss, the Court noting that there was a question as to whether or not the Committee was properly constituted and, further, that it was undisputed that the Committee had not followed its own rules with respect to the complaints received against plaintiff. Plaintiff was also apparently successful in securing access to the Committee's files, although he asserts that the ...

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