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SHEINBROT v. PFEFFER

January 16, 1997

STUART SHEINBROT, M.D.; ERINA SHEINBROT; MORTON KATZ; and STORCH, SHEINBROT & SINGER, PHYSICIANS, P.C.; Plaintiffs, against SONDRA PFEFFER, M.D., Defendant. IRWIN SINGER, M.D. and DENISE E. SINGER, Plaintiffs, -against- SONDRA PFEFFER, M.D., Defendant.

Eugene H. Nickerson, U.S.D.J.


The opinion of the court was delivered by: NICKERSON

Plaintiffs brought these consolidated actions under Title III of the Omnibus Crime Control and Safe Streets Act, 18 U.S.C. §§ 2510-20 (Title III), and New York common law alleging that defendant Sondra J. Pfeffer, M.D. (1) intercepted and disclosed the substance of certain of their telephone calls ("the Interception Actions"), and (2) defrauded them by representing that she would become a shareholder or partner in their practice when she did not intend to do so ("the Fraud Actions"). These claims are raised in both 93-CV-5343, brought by Stuart and Erina Sheinbrot and Morton Katz ("the Sheinbrot plaintiffs"), and 94-CV-649, brought by Irwin and Denise Singer ("the Singer plaintiffs").

 In late 1994, plaintiffs moved for summary judgment on the interception claims and Pfeffer moved for summary judgment dismissing the fraud claims for lack of jurisdiction. By memorandum and order dated July 12, 1995, this court partially granted plaintiffs' motion for summary judgment, holding that (1) defendant intercepted and disclosed plaintiffs' telephone calls within the meaning of Title III, (2) defendant acted with the requisite state of mind, and (3) none of the statutory exceptions to Title III applied. The court thus determined that plaintiffs had shown that defendant was liable on those claims but denied the plaintiffs' motion in part because it found that there was a genuine question as to whether plaintiffs' claims were partially barred by the statute of limitations. The court denied Pfeffer's motion for summary judgment, holding that the court had supplemental jurisdiction over the common law claims. By Memorandum and Order dated February 29, 1996, this court denied the parties' motions for reargument.

 The facts are summarized in this court's previous opinions, familiarity with which is assumed. For the purpose of this Memorandum and Order, the court notes that from 1988 until December 15, 1990, defendant Sondra Pfeffer was employed as a physician by Storch, Sheinbrot & Singer, Physicians, P.C. ("the Corporation"), a professional corporation practicing medicine with a specialty in radiology. At the particular times, plaintiffs Stuart Sheinbrot and Irwin Singer were the sole shareholders and operators of the Corporation. During Pfeffer's employment she and plaintiffs engaged in negotiations to make her a partner or shareholder in the Corporation.

 I. Affirmative Defenses

 Pfeffer filed her Answer, Affirmative Defenses and Counterclaims on August 23, 1995, one month after this court ruled on the motions for summary judgment. The Singer plaintiffs now argue that this court should dismiss defendant's first, third, fourth, fifth, and sixth affirmative defenses on the ground that in the July 12, 1995 Memorandum and Order this court ruled that no genuine issue of material fact exists to support the contentions now made into defenses. The Sheinbrot plaintiffs argue that this court should dismiss the identical defenses in their case.

 The defenses at issue are: that the complaints fail to state a claim upon which relief can be granted, that plaintiffs consented to defendant's actions, that defendant had a legitimate business interest in listening to plaintiffs' conversations, that defendant listened to the telephone calls in good faith reliance on the advice of counsel, and that defendant believed her actions to be consistent with her duty to report problems in their medical practice.

 Pfeffer admits that this court's July 12, 1995 Memorandum and Order "determined the validity of five defenses asserted by defendant" and ruled in favor of plaintiffs. Nonetheless, Pfeffer argues that she has "properly and in good faith alleged such defenses as affirmative defenses" to protect her interests "in the event this court grants reargument and reverses or modifies any finding made in the Memorandum and Order adverse to defendant." The court denied defendant's motion for reargument. Accordingly, the court dismisses defendant's first, third, fourth, fifth, and sixth affirmative defenses in both actions.

 II. Counterclaims

 A.

 The Sheinbrot plaintiffs argue that Pfeffer's fourth counterclaim should be barred by the doctrine of res judicata. The fourth counterclaim reads:

 
By virtue of plaintiffs' holding defendant out to the public as a partner and/or shareholder of defendants [sic] P.C., Brooklyn MRI, S. Leasing, SBMIS Corp. and Partnership, [defendant] is entitled to an accounting of the assets of such entities.

 That counterclaim is virtually identical to Pfeffer's sixth cause of action in another action, Pfeffer v. Singer, 92-CV-2490, which was previously filed and is still pending in this court:

 
By virtue of defendants' holding plaintiff out to the public as a partner and/or shareholder of defendants P.C., Brooklyn MRI, S. Leasing, SBMIS Corp. and Partnership, plaintiff must be deemed by operation of law to be a partner or shareholder of such entities, and is entitled to an accounting of the assets of such entities.

 By Memorandum and Order dated July 13, 1993, this court dismissed the above claim on consent of the parties. According to the Sheinbrot plaintiffs, the dismissal operates as an "adjudication on the merits" under Rule 41(b) of the Federal Rules of Civil Procedure and bars the present counterclaim by reason of res judicata.


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