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May 16, 1986


The opinion of the court was delivered by: PLATT




 Plaintiff commenced this action three years ago and the case was assigned to the Honorable Francis X. Altimari, District Court Judge for the Eastern District of New York sitting in Uniondale, New York. Following Judge Altimari's appointment to the Court of Appeals for the Second Circuit the case was reassigned on March 11, 1986 to the undersigned. The matter is presently before us on defendant's motion for summary judgment on all the remaining outstanding claims in the action. The Court's jurisdictional authority is vested pursuant to 28 U.S.C. § 1332(a), as plaintiff is a New York resident and the defendant is a division of a Georgia corporation and the amount in controversy exceeds $10,000.00 exclusive of interest and costs.

 A rather detailed recitation of the relevant facts and the procedural history of the case is a necessary prelude to the Court's decision.

 A. The Facts

 Dr. Solinsky is a successful and skilled physician who, for the past ten years has specialized in the treatment of rheumatism and arthritis. In 1977 plaintiff's name was placed on a referral list published and circulated by the defendant identifying qualified physicians in the New York metropolitan area who "are members of the New York Rheumatism Association and/or the American Rheumatism Association, the medical associations most concerned with arthritis." Pl's 3g Statement at P4. The publication provided consumers with valuable and helpful information, but clearly indicated that "in addition to the physicians listed, there are many others in the community who are well qualified to treat patients with rheumatic diseases." Id.

 In 1983, in response to a recommendation by the National Council of the Arthritis Foundation, the defendant's changed the criteria for inclusion on the list. The National Council's directive urged the local chapters to replace subjective approval with objective standards as the bases for selecting doctors for the list. Consequently, the Long Island Arthritis Foundation revised their referral list retaining only those doctors who were board certified or board eligible in rheumatology.

 To become board certified in rheumatology is at least a five year process. A physician must first complete a three-year course of study in Internal Medicine and then pass a standardized examination on that subject. Following its successful completion, the physician must then undertake two additional years of training in the subspecialty of rheumatology and pass a second test on this subject. A doctor is board eligible if he or she has fulfilled all of the above requirements except has not yet passed the standardized exam in rheumatology. Def's Mem. at p. 9.

 Plaintiff, admittedly, is neither board certified nor board eligible. Hence, his name was dropped from the defendant's referral list. However, as was true prior to the adoption of the new criteria, "[t]he list does not state or imply that other physicians are not qualified to treat this illness." McAsey Aff. at P 4.

 Defendant has offered the following reasons for the adoption of the new objective standards: (1) limitation of any malpractice liability that might result from subjective determinations regarding the suitability and competence of doctors to be on the list, (2) the requirement rationally relates to high quality treatment because board certification and board eligibility require additional training, and (3) avoidance of any accusations of favoritism or unfortunate imbroglios such as the case at bar. Id. Plaintiff has not heeded the defendant's credible explanation and for three years has nurtured the belief that the defendant acted maliciously and without probable cause. Second Amended Complaint at P 22.

 B. Procedural History

 The docket sheet of this case is replete with entries and bears summarizing before the Court discusses the pending motion.

 In response to the initial complaint which included claims under federal and state antitrust laws, and for breach of contract, unfair competition and prima facie tort, the defendant moved to dismiss. To foreclose a decision on the merits, plaintiff amended the complaint on March 14, 1984. Subsequently, however, the amended complaint was dismissed in its entirety, but the Court granted plaintiff leave to amend his pleadings, yet again, or to institute suit in Nassau County Supreme Court. Plaintiff chose the first option and filed a second amended complaint along with an application for a preliminary injunction requiring the defendant to restore his name to the referral list. Judge Altimari denied the application on the grounds that ...

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