In the Matter of SPRINGS AESTHETIC PLASTIC SURGERY, P.C. JEFFREY R. RIDHA, Respondent; JITENDRA SINGH, Appellant.
Calendar Date: May 1, 2017
Cohn, PC, Carle Place (Mitchell R. Goldklang of counsel), for
Carusone & Carusone, Saratoga Springs (John J. Carusone
Jr. of counsel), for respondent.
Before: McCarthy, J.P., Rose, Devine, Clark and Mulvey, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (Krogmann, J.), entered
January 4, 2016 in Warren County, which, in a proceeding
pursuant to Business Corporation Law article 11, determined
to use a certain methodology to distribute the income of
Springs Aesthetic Plastic Surgery, P.C.
and respondent (hereinafter collectively referred to as the
doctors) are plastic surgeons and were friends. Respondent
began practicing prior to petitioner, and the two
contemplated forming a joint practice after petitioner
completed his training. The plans were put into effect in
August 2008, and the doctors became equal shareholders in the
Springs Aesthetic Plastic Surgery, P.C. (hereinafter
Springs). The joint practice was terminated on January 26,
2012 and, two months later, petitioner commenced this
proceeding  seeking the judicial dissolution of
Springs and an accounting. The case proceeded to a nonjury
trial where Supreme Court was asked to resolve one question,
namely, what method was agreed upon by the doctors to
distribute Springs' net income between them. Supreme
Court determined that the doctors agreed to use a revenue
generated income distribution (hereinafter RGID) methodology
from August 1, 2008 to November 11, 2011 and thereafter
equally divided it. Respondent now appeals.
this appeal from a determination "issued after a nonjury
trial, we are able to independently review the weight of the
evidence and, while according appropriate deference to the
trial judge's credibility assessments and factual
findings, grant the judgment warranted by the record"
(Williams v State of New York, 140 A.D.3d 1376, 1377
 [internal quotation marks, ellipsis and citations
omitted]; see Matter of Gould Erectors &
Rigging, Inc., 146 A.D.3d 1128, 1129 ). Our independent
review leads us to agree with the findings of Supreme Court
and, as such, we affirm.
doctors treated themselves as employees of Springs and, as
part of the process that led to their joint practice, a
written employment agreement was drafted for each that would
have distributed net corporate income to them using the RGID
method. The draft employment agreements were not executed,
leaving the question of what oral agreement took their place.
The material terms of that agreement must be divined from
"the objective manifestations of the intent of the
parties as gathered by their expressed words and deeds"
(Brown Bros. Elec. Contrs. v Beam Constr. Corp., 41
N.Y.2d 397, 399 ; accord Stonehill Capital Mgt. LLC
v Bank of the W., 28 N.Y.3d 439, 448-449 ).
"In doing so, disproportionate emphasis is not to be put
on any single act, phrase or other expression, but, instead,
on the totality of all of these, given the attendant
circumstances, the situation of the parties, and the
objectives they were striving to attain" (Brown
Bros. Elec. Contrs. v Beam Constr. Corp., 41 N.Y.2d at
399-400 [citations omitted]; see Zheng v City of New
York, 19 N.Y.3d 556, 574 ).
petitioner testified that the draft employment agreements
contained the doctors' actual agreement to use the RGID
method. Respondent disagreed, but he also admitted that he
did not express any concerns about the draft employment
agreements in writing. The attorney who drafted the
employment agreements, Matthew Fuller, testified that the
RGID language in the drafts had been suggested by
Springs' accountant and was "tailored... to fit the
discussions" between himself, the accountant and the
doctors. Fuller made clear that the draft employment
agreements were in their final form and expressed his belief
that the doctors had a meeting of the minds on their terms.
The accountant, Robert Ricciardelli, confirmed that he had
prepared the RGID language used in the draft employment
agreements and that the doctors had seemingly agreed to those
terms. There was, moreover, no documentary proof indicating
that any other income distribution method was seriously
considered by the doctors at the outset. Supreme Court found
Fuller and Ricciardelli to be credible witnesses and,
deferring to that assessment, the record leaves little doubt
that the parties agreed to use the RGID method at the outset.
testified that he did assent in 2010 to share income that he
had earned in 2008 and 2009 with respondent, but he made
clear that such was a response to respondent complaining that
he had not received anything for the investments that he had
made in his own practice before petitioner's arrival and
denied ever agreeing to depart from the RGID method overall.
The trial evidence bore that claim out, showing that the
revenue and expenses of Springs were associated with a
specific doctor for bookkeeping purposes and that neither
doctor had a say in the other's billing and collection
procedures, practices consistent with the use of the RGID
method. Indeed, the record reflected that respondent hired an
attorney to handle his, and only his, overdue claims.
Ricciardelli also understood that the RGID method was still
being used in 2010 and, while respondent instructed him to
distribute corporate income equally at that point, he
acknowledged that he did not know if petitioner had agreed to
that change. Petitioner gave no reason to believe that he had
and, in fact, testified that he never would have agreed to
such a change without obtaining a say in what he saw as the
subpar billing and collection practices of respondent. Thus,
after considering both the objective manifestations of an
agreement to use the RGID method and the dearth of compelling
evidence that the doctors agreed to abandon the method until
November 2011, we perceive no reason to disturb the
appealed-from determination (see Gallagher v Long Is.
Plastic Surgical Group, P.C., 113 A.D.3d 652, 653-654
, lv denied 22 N.Y.3d 865');">22 N.Y.3d 865 ;
Kowalchuk v Stroup, 61 A.D.3d 118, 125 ).
McCarthy, J.P., Rose, Clark and Mulvey, JJ., concur.
that the order is ...