Plaintiff Richard Sussman a physician and former intern at Coney Island Hospital ("CIH") a unit of the New York City Health and Hospitals Corporation ("HHC") brings this action against HHC CIH and Sandor A. Friedman the chairman of CIH's Department of Medicine and director of its residency program. Dr. Sussman asserts various constitutional statutory and common law claims arising from his employment and termination as an intern at CIH. Before Court are defendants' motion for summary judgment and plaintiff's cross-motion for partial summary judgment. For the reasons detailed below the defendants' motion is granted in part and denied in part and plaintiff's

cross-motion is denied.

BACKGROUND

Dr. Sussman graduated from St. Georges Medical School located in Grenada in June 1992. Complaint P 8; Declaration of Richard Sussman dated June 12 1996 ("Sussman Dec.") P 5. After completing a one-year internship program in psychiatry at Kings County Hospital in June 1993 Dr. Sussman sought to qualify for a neurology residency but he needed eight more months of training in internal medicine. Complaint P 8; Sussman Dec. PP 5-6. Dr. Sussman sought to obtain the additional training at CIH and contacted defendant Dr. Friedman residency director at CIH. Sussman Dec. P 7.

Dr. Sussman claims that in the course of his discussions with Dr. Friedman he and his former professors at SUNY/Brooklyn informed Dr. Friedman that plaintiff suffers from various learning disabilities including dyslexia and graph-o-motor dyspraxia. Sussman Dec. PP 9 13; Plaintiff's Amended Opposing Statement Pursuant to 3(g) ("Pl. 3(g)") PP 3-4. According to Dr. Sussman these disabilities make reading stressful cause him problems with spelling cause him difficulty in reading electrocardiograms ("EKG's") make it difficult for him to convert mathematical units in his head without the use of a calculator cause him to reverse numbers if he is not careful and make it difficult for him to read other people's handwriting. Defendants' Statement of Facts Pursuant to Local Rule 3(g) ("Def. 3(g)") P 6.

Partly because of Dr. Sussman's learning disabilities he and Dr. Friedman agreed that Dr. Sussman would work for a full year (rather than the eight months Dr. Sussman required) as an intern at CIH. Sussman Dec. PP 8-10. On April 21 1993 Dr. Sussman entered into a one-year Individual House Staff Contract ("IHSC") with CIH and defendant HHC for the period July 1 1993 to July 1 1994. Defendants' Exhibit ("Def. Ex.") C. Paragraph 3 of Dr. Sussman's IHSC obliges him to remain employed by HHC for the full period "unless terminated or suspended from service by the Corporation pursuant to applicable disciplinary procedures as contained in the applicable collective bargaining agreement." Id. P 3.

Dr. Sussman's Attempt to Leave CIH for Beth Israel

During the first seven months of his internship at CIH plaintiff received generally positive performance evaluations from his superiors. See Plaintiff's Exhibits ("Pl. Ex.") 3-12. In November 1993 he began sending out applications for residency programs in neurology. Sussman Dec. P 29; Pl. 3(g) P 9. In December 1993 in response to one of these applications Dr. Sussman was informed by Beth Israel Hospital in Manhattan that it had a position available for him beginning on January 31 1994 -- approximately six months before his agreed termination date with CIH. Sussman Dec. PP 31-32.

Dr. Sussman then broached the idea of leaving the CIH program ahead of schedule with Dr. Friedman. Dr. Friedman was apparently reluctant to let Dr. Sussman leave so far ahead of schedule but he evinced a willingness to work out a compromise permitting Dr. Sussman to leave by March 1 1994. Sussman Dec. P 42; Pl. 3(g) PP 11-12. Dr. Sussman explained that Beth Israel would not extend the deadline for his acceptance of a position beyond February 1 and pressed Dr. Friedman for permission to leave CIH earlier. Pl. 3(g) PP 15-16. He also explained to Dr. Friedman the numerous advantages offered to him by a position with Beth Israel including accommodating his learning disabilities by adjusting his patient load and providing more time for required work. Sussman Dec. PP 42-44; Pl. 3(g) P 20.

In the course of these conversations Dr. Sussman also revealed his homosexuality to Dr. Friedman and told Dr. Friedman that he believed a position at Beth Israel would allow him to be more open about that fact. Pl. 3(g) PP 18-19. At this point Dr. Sussman claims Dr. Friedman became "extremely angry " called plaintiff "ungrateful" and flatly refused him permission to leave CIH for Beth Israel. Sussman Dec. PP 47-48. On January 27 1994 after further unsuccessful attempts to persuade Dr. Friedman through the intervention of third parties plaintiff wrote to Beth Israel to decline the offer. Pl. Ex. 19; Sussman Dec. PP 49-51.

The next day in connection with Dr. Sussman's efforts to obtain another position as a neurology resident Dr. Friedman sent out a recommendation letter on plaintiff's behalf. Pl. Ex. 16. In this letter Dr. Friedman praised Dr. Sussman as "a conscientious house officer who works hard to take good care of his patients" and as "a person of high intellect and integrity." However Dr. Friedman's letter also cautioned that Dr. Sussman "has had difficulty in adjusting to the very demanding schedule and pace of activity in a busy city hospital" and states that Dr. Sussman "has also been somewhat slow to integrate clinical data into detailed problems and plans of action." Pl. Ex. 16.

The Alleged Deterioration in Dr. Sussman's Performance

Dr. Sussman concedes that he became "depressed" after Dr. Friedman refused to release him from his contract. Def. 3(g) P 36 (citing Plaintiff's Deposition at 493). Defendants claim that during February and March 1994 plaintiff's performance at the hospital deteriorated substantially.

First defendants claim that Dr. Sussman was consistently arriving late for work in February (sometimes by as much as four hours) and that he was warned by Friedman that he might be suspended as a result of this lateness. Def. 3(g) PP 32-38.

Second defendants claim that Dr. Sussman's substandard performance began to pose a danger to patients. For example according to defendants on or about March 3 1994 Dr. Sussman ordered a transfusion for a patient who did not require a transfusion. Def. 3(g) PP 38-39. Dr. Sussman disputes this version of the incident and claims that Dr. Michael Gomendoza a second-year resident under whose supervision Dr. Sussman was then working had indicated the wrong patient to be transfused and "was quite obviously at fault" in this matter. Sussman Dec. PP 118-25.

Defendants also claim that on or about March 3 1994 Dr. Sussman ignored an order from Dr. Gomendoza to monitor closely a patient with hydrocephalus or swelling of the brain and to convey certain information about the patient to a doctor on the covering team. Def. 3(g) PP 40-41. Dr. Sussman disputes these allegations claiming that he did notify the appropriate party and asserting that Dr. Gomendoza was "either mistaken or deliberately misrepresenting the facts." Sussman Dec. P 135. *fn1

The Disciplinary Action Against Dr. Sussman

On Friday March 4, 1994 Dr. Sussman without any prior written notice was informed that he was being suspended from clinical duties at the ambulatory clinic in the hospital and would be reassigned to library duties. Pl. 3(g) P 23; Sussman Dec. P 52. The following Monday March 7, 1994 Dr. Sussman was called into Dr. Friedman's office to meet with Dr. Friedman and other hospital officials. Sussman Dec. P 54; Def. 3(g) P 44. At this meeting Dr. Friedman told Dr. Sussman that he was concerned that Dr. Sussman posed a threat to patient care and advised Dr. Sussman that he was being relieved of all clinical responsibilities. Def. 3(g) P 45.

Dr. Sussman claims that at this meeting Dr. Friedman also "ordered" him immediately to take a drug urinalysis test without giving any explanation or reason for this order. Sussman Dec. PP 55-56; Pl. 3(g) P 25. Dr. Sussman claims that he agreed to take the drug test only because his "residency position was clearly on the line." Sussman Dec. P 60; Pl. 3(g) P 30. Defendants however claim that Dr. Friedman merely "asked plaintiff if he would voluntarily take a drug test " and that this request was based on Dr. Friedman's experience as a physician and diagnostician and judgment "that when a relatively young person begins to have a significant deterioration in his functioning along with patterns of lateness a most common cause is the use of 'some' recreational drug." Def. 3(g) PP 48-49. Dr. Sussman's drug test came back negative one day later. Def. 3(g) P 55.

On March 8, 1994 Dr. Sussman again met with Dr. Friedman and other hospital officials. Sussman Dec. P 62; Def. 3(g) P 54. At this meeting he was told to resign. Sussman Dec. P 63; Def. 3(g) 56. When Dr. Sussman asked Dr. Friedman why he was being forced to resign Dr. Friedman said only that Sussman had been "late" on his patient write-ups when he was on call. Sussman Dec. P 68; Pl. 3(g) P 36. Sussman claims that when he contested this criticism Dr. Friedman said that he was "mentally ill" and that something was wrong with him but that Dr. Friedman did not know exactly what it was. Sussman Dec. P 70; Pl. 3(g) P 38. It is undisputed that Dr. Friedman told Sussman that if he refused to resign Dr. Friedman would take steps to terminate him Sussman Dec. P 67; Def. 3(g) P 57. Plaintiff claims that Dr. Friedman offered to provide Dr. Sussman with a positive reference if he agreed to resign at once. Sussman Dec. P 64-67; Pl. 3(g) P 34-35.

The collective bargaining agreement negotiated between the Committee of Interns and Residents ("CIR") the union representing interns and residents of HHC hospitals provides in pertinent part that (1) no disciplinary action shall be taken against any resident except "for cause"; (2) residents shall have a right to a hearing before being subject to disciplinary action; and (3) residents shall be given written notice of any disciplinary charges against them. See Def. Ex. H (Article XV Sections 1 and 3). The agreement also provides however that "It is understood that [a resident] may be reassigned from medical responsibilities without a hearing when [the resident's] continued presence is deemed to risk the successful operation of the hospital." Id. (Article XV Section 1).

Dr. Sussman claims that at the March 8 meeting he repeatedly requested the presence of a union representative from CIR. Sussman Dec. P 71. Dr. Sussman also claims that Dr. Friedman told him that if he continued to ask for union representation Dr. Friedman would withdraw the offer of voluntary resignation with a favorable recommendation and warned Dr. Sussman that he could "get" him simply for having been late. Pl. 3(g) P 40; Sussman Dec. P 72. Dr. Sussman claims that on the same day he sought the advice of Dr. Edward Gerken Executive Director of the Coney Island Medical Group with whom he had always had a good relationship and that Dr. Gerken warned him that if he involved the union his "options would change." Sussman Dec. P 75. *fn2

In order to defend himself against CIH's threat to terminate him Dr. Sussman claims that he sought to obtain CIH's records of attending physicians' evaluations of him but was told that he would first have to obtain Dr. Friedman's permission. Dr. Sussman claims that Dr. Friedman refused to let him see the evaluations and would only read the evaluations to him without revealing the names of the authors. Sussman Dec. PP 76-84; Pl. 3(g) PP 49-50. On March 18, 1994 Dr. Sussman claims that he was again summoned to Dr. Friedman's office whereupon Dr. Friedman told him "You have elected to make this a union matter and that's the end of your medical career." Sussman Dec. P 88; Pl. 3(g) P 56.

On March 22, 1994 the CIR filed a request for arbitration on behalf of Dr. Sussman in order to challenge Dr. Sussman's reassignment to non-medical duties. Pl. 3(g) P 60; Def. 3(g) P 61. On March 24 1994 the hospital served Dr. Sussman with a Notice and Statement of Charges charging him with two counts of "Gross Negligence/endangering the life of patient" and four counts of "misconduct." Def. 3(g) P 62; Pl. 3(g) P 70. The two negligence charges related to Dr. Sussman's alleged improper ordering of the transfusion and Dr. Sussman's alleged failure to monitor the hydrocephalus patient on March 3 1994. The misconduct charges related to Dr. Sussman's alleged excessive lateness unexplained absence from the hospital for a four-day period unauthorized removal of a patient chart and failure to demonstrate the required level of competency during his time at CIH. Def. 3(g) P 62. Dr. Sussman claims that when he sought to learn the identities of the unnamed patients who were the subject of the gross negligence charges John Persaud Associate Director of Coney Island Hospital denied his request on the ground that the names of the patients were confidential as a matter of hospital policy. Sussman Dec. P 101.

Defendants claim that the charges against Dr. Sussman contained in the March 24 notice were based on attending physicians' evaluations of Dr. Sussman and notes maintained by Dr. Friedman with respect to plaintiff's performance. Def. 3(g) P 63. However plaintiff claims that Dr. Friedman's memos are "fictitious . . . created and typed up on a single date . . . to give the false impression that [Dr. Sussman] had been the subject of numerous conversations and reprimands by Friedman over a long period of time." Sussman Dec. P 88; Pl. 3(g) P 63. Plaintiff claims that the memos "were and are total fabrications detailing alleged meetings and conversations between Friedman and [Dr. Sussman] most of which never took place." Sussman Dec. P 88; Pl. 3(g) P 64.

On April 11 1994 a disciplinary hearing was convened before Persaud CIH's associate director who had been designated by Dr. Friedman as the hearing officer. Plaintiff challenges Persaud's impartiality pointing out that Persaud stated in his deposition with regard to his role as hearing officer that "we brought the charges we have to prove the charges . . . I represent the hospital." Sussman Dec. P 102. Plaintiff also claims that he was not able to prepare adequately for the hearing because of CIH's refusal to disclose the details of the charges against him. Sussman Dec. P 114. Although Dr. Sussman appeared at the hearing with a union representative and denied the allegations against him Def. 3(g) PP 65-68 he claims that he was unable to defend himself because he was frequently cut off by Persaud had not received adequate notice of the charges against him Sussman Dec. P 114 Pl. 3(g) P 87 and had been denied access to the documents which he needed to prepare his defense Sussman Dec. P 117.

On April 18 1994 Persaud issued a written decision finding Dr. Sussman guilty of the charges against him and recommending that Dr. Sussman be terminated. Def. 3(g) P 69; Pl. 3(g) P 107; Sussman Dec. P 139. Dr. Sussman was terminated from CIH's residency program on April 22 1994.

Events Subsequent to Dr. Sussman's Termination

By letter dated May 26 1994 Paula Ioannides Risk Manager at CIH informed the New York State Office of Professional Medical Conduct ("OPMC") that Dr. Sussman had been terminated for "gross negligence" and "misconduct." Sussman Dec. P 142; Pl. Ex. 54. According to plaintiff the CIH letter to the OPMC "precipitated a full scale investigation" against him by New York State pursuant to which investigators visited the hospital reviewed hospital files and interrogated Dr. Friedman. Pl. 3(g) P 111; Sussman. Dec. P 143. Dr. Sussman concedes that the investigation "was ultimately closed without action being taken " but contends that a permanent non-public file was opened up on him "for future use as needed." Sussman Dec. P 145; Pl. Ex. 56.

On June 6 1994 Dr. Sussman filed a notice of claim with HHC in which the only claim asserted was defamation in connection with Dr. Friedman's alleged statements of March 8 1994 that Dr. Sussman was "the worst intern [Dr. Friedman] had ever had to supervise in 20 years " that Dr. Sussman was "completely incompetent" and "a danger to patients " and that "it was not safe to have [Dr. Sussman] on the wards." Def. Ex. U.

On September 19 1994 Lagneia D. Stumper Senior Director of Labor Relations/Human Resources for HHC conducted a "Step II" review of CIH's decision to terminate Sussman and by letter dated December 2 1994 concluded that the preponderance of the evidence supported the charges against Dr. Sussman and recommended the penalty of termination. Def. 3(g) P 71.

On December 16 1994 CIR filed a request for arbitration with respect to Dr. Sussman's dismissal from CIH's residency program. However this request was later withdrawn. Def. 3(g) P 72.

On or about November 21 1994 Dr. Sussman filed the instant lawsuit. In his fourth amended complaint Dr. Sussman asserts eight claims against the defendants. Dr. Sussman claims that defendants (1) deprived him of liberty and property without due process of law and violated his constitutional rights under the First Fourth Fifth and Fourteenth Amendments asserting a claim pursuant to 42 U.S.C. SEC. 1983 ("Section 1983"); (2) discriminated against him on the basis of his sexual orientation in violation of the New York City Human Rights Law N.Y.C. Administrative Code SEC.(s) 8-107[1](a) and 8-107[16]; (3) breached provisions of a collective bargaining agreement made part of plaintiff's employment contract; (4) defamed plaintiff by disseminating various oral and written statements about him; (5) discriminated against plaintiff on the basis of his dyslexia handicap or disability in violation of the Rehabilitation Act of 1973 ("Rehabilitation Act") 29 U.S.C. SEC. 701 et seq.; (6) violated the New York State Human Rights Law N.Y. Exec. Law SEC. 296 by falsely perceiving plaintiff to be a disabled drug user and by coercing him to take a drug test; (7) tortuously interfered with plaintiff's prospective business relationships; and (8) failed to provide reasonable accommodations to plaintiff concerning his dyslexia and learning disability in violation of the Americans with Disabilities Act of 1990 ("ADA") 42 U.S.C. SEC. 12101 et seq.

DISCUSSION

I. Standard for Summary Judgment

A motion for summary judgment shall only be granted "if the pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact and all inferences and ambiguities are resolved in favor of the party against whom summary judgment is sought. Gallo v. Prudential Residential Servs. Ltd. Partnership 22 F.3d 1219 1223-24 (2d Cir. 1994) (citations omitted). To defeat a summary judgment motion the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp. 475 U.S. 574 586 89 L. Ed. 2d 538 106 S. Ct. 1348 (1986) (citations omitted). Rather the non-moving party must produce sufficient specific facts to establish a genuine issue of material fact for trial. Celotex Corp. v. Catrett 477 U.S. 317 322-24 91 L. Ed. 2d 265 106 S. Ct. 2548 (1986).

When a case turns on the intent of one party as employment discrimination claims often do a motion for summary judgment must be approached with special caution. Gallo 22 F.3d at 1224. Because the employer rarely leaves direct evidence of its discriminatory intent Court must carefully comb the available evidence in search of circumstantial proof to undercut the employer's explanations for its actions. Hollander v. American Cyanamid Co. 895 F.2d 80 85 (2d Cir. 1990). But the duty of care does not mean that the district court lacks authority under Rule 56 to grant summary judgment for either party in an employment discrimination case. McLee v. Chrysler Corp. 38 F.3d 67 68 (2d Cir.1994). The "salutary purposes of summary judgment -- avoiding protracted expensive and harassing trials -- apply no less to discrimination cases than to commercial or other areas of litigation." Meiri v. Dacon 759 F.2d 989 998 (2d Cir. 1985).

II. Section 1983 Claims

Dr. Sussman asserts four separate claims pursuant to Section 1983. In order to maintain a Section 1983 action the conduct complained of must have (1) been committed by a person acting under color of state law and (2) deprived a person of rights privileges or immunities secured by the Constitution or laws of the United States. See e.g. Pitchell v. Callan 13 F.3d 545 547 (2d Cir. 1994) (citations omitted). *fn3

A. First Amendment Claim

Plaintiff's complaint alleges that defendants violated Dr. Sussman's rights under the First Amendment to the United States Constitution by taking adverse employment actions and eventually terminating his employment in retaliation for plaintiff's exercise of his First Amendment right to petition for a redress of his employment grievances through his union.

Dr. Sussman and defendants move for summary judgment on this claim. Defendants contend that plaintiff's First Amendment claim is legally deficient because the speech at issue -- Dr. Sussman's filing of a grievance petition concerning his reassignment from patient-care duties to library duty -- did not relate to a matter of public concern and therefore is not protected by the First Amendment. In his cross-motion Dr. Sussman contends that he is entitled to summary judgment on this claim because (1) the New York City Board of Collective Bargaining determined that defendants' conduct "constituted a restraint of a union member's right to seek the aid of his union in responding to his suspension from duty " Pl. Ex. 25 and (2) the issue decided by the Board is identical to the issue raised by Dr. Sussman's First Amendment claim and defendants are collaterally estopped from re-litigating this issue. Defendants dispute the alleged preclusive effect of the Board determination contending that the issues and parties in this litigation are different from those in the Board proceeding.

In order to determine the preclusive effect of the Board's determination on this Section 1983 action we look to New York issue preclusion law. See e.g. Kulak v. City of New York 88 F.3d 63 71 (2d Cir. 1996). Under New York law there are two requirements for the application of collateral estoppel: (1) there must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action; and (2) there must have been a full and fair opportunity to contest the decision now said to be controlling. Id. at 71-72 (citing Schwartz v. Public Administrator 24 N.Y.2d 65 298 N.Y.S.2d 955 960 246 N.E.2d 725 (1969)).

Although Dr. Friedman testified as a witness during the Board hearing he was not a party to that proceeding and thus did not have a full and fair opportunity to contest the Board's decision. Moreover the issue addressed by the Board is not the same as the issue of whether defendants violated plaintiff's First Amendment rights. The Board determined that HHC had committed an unfair labor practice by interfering with plaintiff's right to consult his union. Dr. Sussman's First Amendment claim alleges that after he consulted with his union and the union brought an employment grievance on his behalf defendants retaliated by instigating the filing of false misconduct charges and the termination of Dr. Sussman's employment. Accordingly the Board's determination is not entitled to preclusive effect in this litigation and we turn to examine the question raised by defendants' motion of whether plaintiff has adequately pleaded and supported a claim for violation of his First Amendment right to petition for redress of his grievances.

In the typical case where a public employee claims to have been discharged or disciplined for exercising his or her First Amendment right to free expression the employee must initially establish two elements: (1) that the conduct at issue was protected speech; and (2) that the speech played a substantial part in the employer's adverse employment action. Ezekwo v. New York City Health and Hospitals Corp. 940 F.2d 775 780 (2d Cir. 1991) (citing Mount Healthy City Board of Education v. Doyle 429 U.S. 274 287 50 L. Ed. 2d 471 97 S. Ct. 568 (1977); Givhan v. Western Line Consol. Sch. Dist. 439 U.S. 410 416-17 58 L. Ed. 2d 619 99 S. Ct. 693 (1979)). The Supreme Court has held that a public employee's speech is protected by the First Amendment only if it can "be fairly characterized as constituting speech on a matter of public concern." Connick v. Myers 461 U.S. 138 146 75 L. Ed. 2d 708 103 S. Ct. 1684 (1983). The issue of whether the employee's speech is constitutionally protected is a question of law to be decided by Court. Id. 461 U.S. at 148 n.7. If the employee fails to prove either the public-concern element or the causation element his First Amendment claim must fail. If the employee carries these burdens the employer may nonetheless prevail if it can show (1) that it would have made the same employment decision in the absence of the protected conduct or (2) if it can show that the employee's conduct interfered with the employer's "effective and efficient fulfillment of its responsibilities to the public." Id. 461 U.S. at 150.

Plaintiff contends that the requirement that the discharged employee's speech relate to matters of public concern does not apply in cases where a public employee claims that he was retaliated against for exercising his First Amendment right to petition for a redress of grievances. To support his contention that there is a distinction in the standards applicable to right-to-petition cases and the standards applicable to other cases addressing public employees' rights to free expression plaintiff relies primarily on a decision of Court of Appeals for the Third Circuit San Filippo v. Bongiovanni 30 F.3d 424 (3d Cir. 1994). *fn4

Although San Filippo supports plaintiff's argument that he need not demonstrate that his grievance related to a matter of public concern in order to prevail on his right-to-petition First Amendment claim San Filippo is not the law in the Second Circuit. As the Third Circuit noted in San Filippo each circuit court to consider the issue has held that a public employee who alleges that he or she was disciplined in retaliation for having filed a lawsuit against his or her employer does not state a claim under SEC. 1983 unless the lawsuit addressed a matter of public concern. Recognizing that the question is a difficult one we find ourselves unable to subscribe to the reasoning of our sister circuits.

San Filippo 30 F.3d at 440 & n.19 (citing cases from Second Fifth Sixth Seventh Ninth and Eleventh Circuits). One of the "sister circuit" cases cited is White Plains Towing Corp. v. Patterson 991 F.2d 1049 1059 (2d Cir. 1993). In White Plains Towing a towing company and its owner claimed that their First Amendment rights to petition for a redress of grievances was violated when State Police officers allegedly retaliated against plaintiffs for filing grievances and complaints seeking an increase in towing referrals from the State Police. The Second Circuit held that

the First Amendment right to petition the government for a redress of grievances which is "an assurance of a particular freedom of expression " McDonald v. Smith 472 U.S. 479 482 105 S. Ct. 2787 2789 86 L. Ed. 2d 384 (1985) is "generally subject to the same constitutional analysis" as the right to free speech Wayte v. United States 470 U.S. 598 610 n.11 105 S. Ct. 1524 1532 n.11 84 L. Ed. 2d 547 (1985).

White Plains Towing held that the plaintiffs' First Amendment claim based on the right to petition could be found meritorious only if the speech at issue "constituted comments upon a matter of public concern." 991 F.2d at 1059. White Plains Towing establishes that the Second Circuit does not regard claims under the petition clause of the First Amendment to be exempt from the public concern requirement. San Filippo is therefore not controlling.

In reaching this conclusion we recognize that San Filippo is more factually analogous to this case than is White Plains Towing. Nevertheless White Plains Towing makes clear the Second Circuit's position that there is no basis for treating claims alleging retaliation for exercising the right to petition differently from claims alleging retaliation for other types of expressive conduct. Since White Plains Towing was decided at least two courts in this Circuit have ruled that the "public concern" requirement applies even in the public employment right-to-petition context. See O'Malley v. New York City Transit Authority 829 F. Supp.50 53 (E.D.N.Y. 1993); Peele v. New York City Dep't of Social Services 1995 U.S. Dist.18226 No. 92 Civ.3765 1995 WL 728478 at *6 (S.D.N.Y. Dec. 8 1995) aff'd 112 F.3d 505 (2d Cir.1996). In O'Malley a public employee claimed that he had been fired because he had brought a successful lawsuit charging retaliation for filing a workers' compensation claim. Court held that the "public concern" requirement applied to the plaintiff's claim and granted summary judgment in the defendant's favor because the employee "brought his retaliation lawsuit in order to regain his job and there is no evidence that the relevant facts were of public concern." O'Malley 829 F. Supp. at 53; see also Peele 1995 U.S. Dist.18226 1995 WL 728478 at *6 ("plaintiff's retaliation claim based on union grievances that fail to address matters of public concern does not state a claim in this court").

Because we conclude that plaintiff must demonstrate that his grievance related to a matter of public concern in order to prevail on his First Amendment claim we turn now to consider whether plaintiff has satisfied this burden. At oral argument plaintiff's Counsel argued that the matter of public concern requirement was satisfied because Dr. Sussman "asked to see his union representative." Transcript of February 27 1997 at 20. This argument is not persuasive. The subject matter of Dr. Sussman's grievance related to his personal situation within CIH's residency program and his claim that he was being unfairly treated by Dr. Friedman and others. In cases with similar facts courts have rejected claims that the "public concern" requirement is satisfied. See e.g. Ezekwo 940 F.2d at 781 (hospital resident's complaints were "personal in nature and generally related to her own situation within the HHC residency program" and therefore cannot provide the basis for a cause of action under the First Amendment).

For the foregoing reasons defendants' motion for summary judgment dismissing plaintiff's Section 1983 claim to the extent it asserts violation of First Amendment rights is granted.

B. Procedural Due Process Claim

Dr. Sussman's procedural due process claim relies on two distinct allegations. First Dr. Sussman challenges his suspension from clinical duties without prior notice or a hearing on March 4 1994. Second Dr. Sussman challenges the hearing on misconduct charges that took place on April 11 1994 and led to his termination asserting that he did not receive adequate notice of the charges against him; that he had insufficient access to certain personnel records including evaluations by attending physicians; and that the hearing officer John Persaud was not an impartial decision-maker. These two distinct claims are analyzed separately below.

1. Suspension

In assessing a procedural due process claim a court must first determine whether the challenged state action infringed a protected constitutional right. If the interest Dr. Sussman asserts is not of a constitutional dimension i.e. not a protected property or liberty interest then his arguments must fail. See Donato v. Plainview-Old Bethpage Cent. Sch. Dist. 96 F.3d 623 628-29 (2d Cir. 1996) (citing Board of Regents v. Roth 408 U.S. 564 570-71 33 L. Ed. 2d 548 92 S. Ct. 2701 (1972)) cert. denied __ U.S. __ 117 S. Ct.1083 (1997).

Defendants contend that Dr. Sussman's reassignment from clinical responsibilities "did not deprive plaintiff of a constitutionally protected property interest since plaintiff continued to be employed by [CIH] and continued to receive the benefits of that employment." Defendants' Memorandum of Law in Opposition to Plaintiff's Cross-Motion for Summary Judgment and in Further Support of Defendants' Motion for Summary Judgment at 12. Assuming in the alternative that Dr. Sussman had a constitutionally protected interest defendants contend that Dr. Sussman was not entitled to notice of charges or a hearing before his suspension because the collective bargaining agreement in effect between HHC and CIR specifically permits CIH to reassign a House Staff Officer from medical responsibilities without a hearing "when the [resident's] continued presence is deemed to risk the successful operation of the hospital." Def. Ex. H (Article XV Section 1).

We conclude that Dr. Sussman has failed to demonstrate a constitutionally protected property interest implicated by his suspension from medical duties on March 4 1997 because this suspension apparently did not deprive Dr. Sussman of salary or any tangible employment benefit. However Dr. Sussman's complaint asserts that he was also deprived of a constitutionally protected liberty interest without due process; it alleges that Dr. Sussman "was deprived of the right to clear his name" and "sustained and endured a severe loss of personal and professional reputation " Complaint P 36. In some circumstances stigmatizing comments made by a state official about the professional incompetence of an employee being terminated may suffice to state a claim for deprivation of a liberty interest. See e.g. Donato 96 F.3d at 630-33. Plaintiff has alleged such a liberty interest. Accordingly we turn to consider defendants' alternative argument that Dr. Sussman received all the process he was due before his suspension from patient-care duties.

Because the collective bargaining agreement (incorporated by reference into Dr. Sussman's contract with CIH) permits CIH to reassign a resident from medical responsibilities without a hearing "when the [resident's] continued presence is deemed to risk the successful operation of the hospital " defendants argue that Dr. Sussman cannot challenge the fact that he was not afforded a hearing prior to his reassignment. This waiver argument has substantial merit; New York courts have long held that "due process requirements are not of controlling relevance if the party seeking to assert them has waived them in a voluntary agreement such as a collective bargaining agreement." Romano v. Canuteson 11 F.3d 1140 1141 (2d Cir. 1993) (citations omitted).

Even if constitutional due process rights may not be waived pursuant to provisions in a collective bargaining agreement the Constitution does not require a pre-deprivation hearing under the facts at bar. To determine what if any procedural protections the Constitution requires a court must consider:

First the private interest that will be affected by the official action; second the risk of an erroneous deprivation of such interest through the procedures used and the probable value if any of additional or substitute procedural safeguards; and finally the Government's interest including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Mathews v. Eldridge 424 U.S. 319 335 47 L. Ed. 2d 18 96 S. Ct. 893 (1976). As the Second Circuit has noted when residency program administrators believe that a resident presents a threat to patient safety "the program administrators would be justified in immediately removing the resident subject to some post-removal review." Ezekwo 940 F.2d at 785. Here defendants' compelling interest in protecting patient safety outweighs Dr. Sussman's private interest in safeguarding his professional reputation. The risk of an erroneous deprivation of the resident's private interests is too low and the probable value of additional procedures too small to require notice and an opportunity to be heard prior to a resident's reassignment from patient-care duties. A post-deprivation hearing -- which plaintiff received the following month - is all the process that was constitutionally required.

Accordingly Dr. Sussman's procedural due process claim is dismissed insofar as it challenges his reassignment from clinical duties without notice and a hearing.

2. Termination

Dr. Sussman also challenges the April 1994 hearing that led to his termination from CIH's residency program. *fn5 He contends that this hearing did not comport with the rudiments of constitutional due process because: (a) he did not receive adequate notice of the misconduct charges against him; (b) he was not given sufficient opportunity to gather and present evidence from his personnel file to support his case; and (c) John Persaud the hearing officer was not an impartial decision-maker. There are genuine issues of fact as to these allegations. Accordingly defendants' motion for summary judgment is denied as to this aspect of plaintiff's procedural due process claim.

C. Substantive Due Process Claim

In his opposition memorandum plaintiff argues that his substantive due process rights in addition to his procedural due process rights were violated by defendants' "oppressive and conscious-shocking" conduct including their alleged retaliation manufacture of false evidence and attempted destruction of plaintiff's medical career and livelihood. See Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment and in Support of Plaintiff's Cross Motion for Partial Summary Judgment ("Pl. Mem.") at 12-13.

Although there is some authority supporting plaintiff's claim that the arbitrary and capricious conduct by a public employer may in some circumstances violate a public employee's substantive due process rights see Gargiul v. Tompkins 704 F.2d 661 668-69 (2d Cir. 1983) vacated on other grounds 465 U.S. 1016 (1984) the greater weight of authority in this Circuit indicates that such a claim is stated only when a governmental employer abuses some power unique to its role as a governmental entity. See McClary v. O'Hare 786 F.2d 83 89 (2d Cir. 1986) ("the substantive component of the Due Process Clause does not provide a remedy to a public employee that would not be available to a private employee subject to identical conduct by his employer"); Costello v. Town of Fairfield 811 F.2d 782 787 (2d Cir. 1987) (Van Graafeiland concurring). Because defendants did not wield any authority or take any action against plaintiff that was uniquely governmental in nature but rather took actions that any employer could take Dr. Sussman's claim for violation of substantive due process rights is dismissed.

D. Fourth Amendment Claim

Dr. Sussman contends that defendants violated his rights under the Fourth Amendment by subjecting him to a drug urinalysis test without a reasonable suspicion of drug use. See National Treasury Employees Union v. Von Raab 489 U.S. 656 103 L. Ed. 2d 685 109 S. Ct. 1384 (1989); Skinner v. Railway Labor Executives' Ass'n 489 U.S. 602 103 L. Ed. 2d 639 109 S. Ct. 1402 (1989); Coppinger v. Metro-North Commuter R.R. Co. 861 F.2d 33 35 (2d Cir. 1988).

There are genuine issues of material fact concerning this claim as well as defendants' contention that Dr. Sussman consented to the drug test. Accordingly defendants' motion for summary judgment on plaintiff's Fourth Amendment claim is denied.

E. Qualified Immunity

Dr. Friedman contends that all of plaintiff's Section 1983 claims against him should be dismissed because he is shielded from liability by the doctrine of qualified immunity. See Memorandum of Law in Support of Defendants' Motion for Summary Judgment ("Def. Mem.") at 13-15. The doctrine of qualified immunity provides that "government officials performing discretionary functions . . .generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person should have known." Harlow v. Fitzgerald 457 U.S. 800 818 73 L. Ed. 2d 396 102 S. Ct. 2727 (1982). We conclude that there is no basis for applying the doctrine of qualified immunity to plaintiff's surviving Section 1983 claims which allege violations of clearly established principles of procedural due process and Fourth Amendment law.

III. Discrimination Claims

A. Federal Discrimination Claims under the Rehabilitation Act and the ADA

Dr. Sussman asserts claims for relief under the Rehabilitation Act and the ADA. In order to establish a prima facie case of disability discrimination plaintiff must show: (1) that he is a handicapped person under the disability acts; (2) that he is otherwise qualified to perform his job; (3) that he was discharged because of his handicap; and with respect to his Rehabilitation Act claim (4) that his employer is a recipient of Federal financial assistance. *fn6 Wernick v. Federal Reserve Bank of New York 91 F.3d 379 383 (2d Cir. 1996) (citations omitted). In order to demonstrate that he is handicapped plaintiff must prove two elements: (1) that he has a physical or mental impairment; and (2) that such impairment substantially limits one or more of his major life activities. Id. The regulations define major life activities as "functions such as caring for one's self performing manual tasks walking seeing hearing speaking breathing learning and working." 45 C.F.R. SEC. 84.3(j)(2)(ii) (Rehabilitation Act); 29 C.F.R. SEC. 1630.2(h)(2)(I) (ADA).

There are genuine factual disputes as to the three main elements of Dr. Sussman's prima facie case. Plaintiff's dyslexia allegedly impairs his ability to some degree in the "major life activities" of "performing manual tasks " "seeing" and "learning." See e.g. Merry v. A. Sulka & Co. 953 F. Supp. 922 926 (N.D. Ill. 1997). Although plaintiff's dyslexia does not entirely prevent him from reading and writing it may "present general limitations as to numerical reading and writing tasks." Id. Whether these limitations constitute a substantial limitation on major life activities is a matter in dispute which cannot be resolved on the record before Court. In addition there are factual issues as to whether Dr. Sussman is otherwise qualified for the CIH residency program and whether he was discharged because of his alleged disability or because of alleged acts of misconduct.

Accordingly defendants' motion for summary judgment on plaintiff's Rehabilitation Act and ADA claims is denied.

B. State and City Discrimination Claims

1. Drug Disability Discrimination

Dr. Sussman also claims that defendants discriminated against him based on Dr. Friedman's false perception of him as a disabled drug abuser. He brings this claim pursuant to the New York State Human Rights Law N.Y. Exec. Law SEC. 296 which "protects persons who are erroneously believed to be drug abusers." See Doe v. Roe Inc. 160 A.D.2d 255 553 N.Y.S.2d 364 365 (1st Dep't 1990).

Defendants argue that plaintiff's claim must be dismissed because plaintiff failed to file a notice of claim pursuant to N.Y. Unconsolidated Law SEC. 7401 and General Municipal Law SEC. 50-e. Unconsolidated Law SEC.. 7401 provides in pertinent part that an action against HHC for "damages for injuries to real or personal property or for the destruction thereof or for personal injuries or death" shall not be commenced unless a notice of intention to commence such action . . . shall have been filed with a director or officer of the corporation within ninety days after such cause of action shall have accrued. All the provisions of section fifty-e of the general municipal law shall apply to such notice.

N.Y. Unconsol. Law SEC. 7401[2]. General Municipal Law SEC. 50-e provides in pertinent part that in any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action . . . against a public corporation . . . the notice of claim shall comply with and be served in accordance with the provisions of this section within ninety days after the claim arises . . .

N.Y. Gen. Mun. Law SEC. 50-e.

Although some decisions of this Court have dismissed discrimination claims under the Executive Law against municipal defendants for failure to file a notice of claim see e.g. Duck v. New York City Dep't of Transportation No. 91 Civ. 7388 1994 WL 440666 (S.D.N.Y. Aug. 12 1994) Larry v. New York City Dep't of Sanitation 1994 U.S. Dist.4231 No. 92 Civ. 0913 1994 WL 121816 (S.D.N.Y. Apr. 7 1994) others have held that such claims are not tort actions and are therefore not subject to Section 50-e's notice of claim requirement. See e.g. Dimonda v. New York City Police Dep't 1996 U.S. Dist.5286 No. 94 Civ. 0840 1996 WL 194325 at *6 (S.D.N.Y. Apr. 22 1996) (noting that "the most recent case law from the Appellate Division of the New York State Supreme Court . . . hold[s] that the notice of claim provisions embodied in SEC.(s) 50-e and 50-i are not applicable to claims of discrimination brought pursuant to Executive Law SEC. 296"); Peart v. City of New York 1991 U.S. Dist.13582 No. 87 Civ. 4932 1991 WL 206315 (S.D.N.Y. Sept. 27 1991).

We find Dimonda persuasive. Because a claim pursuant to Executive Law SEC. 296 is neither a claim for personal injuries nor a tort claim Court rejects defendants' argument that filing a notice of claim is required before a suit under the Executive Law may be commenced against HHC. *fn7

Defendants next argue that plaintiff has failed to demonstrate a prima facie case of disability discrimination. While conceding that "Dr. Friedman admitted that one possible explanation for plaintiff's behavior might have been his use of recreational drugs " see Def. Mem. at 25 (citing Friedman Dep. at 116) defendants contend that Dr. Sussman's disability discrimination claim must be dismissed because plaintiff was not subjected to any adverse employment action because of this perceived disability. Id. However Dr. Sussman's suspension from patient-care duties on March 4 1994 -- if in fact it was predicated on Dr. Friedman's false perception of Dr. Sussman as a disabled drug abuser - could constitute an adverse employment action because the suspension appears to have affected Dr. Sussman's "terms conditions or privileges" of employment." See N.Y. Exec. Law SEC. 296[1](a).

For the foregoing reasons defendants' motion for summary judgment on plaintiff's Executive Law claim is denied.

2. Sexual Orientation Discrimination

Dr. Sussman claims that defendants discriminated against him on the basis of his sexual orientation in violation of the New York City Human Rights Law. He alleges that Dr. Friedman's hostility towards him increased after he disclosed that he was homosexual in an effort to convince Dr. Friedman to release him from CIH's residency program. Although Dr. Sussman has offered no direct evidence that his termination was precipitated by this disclosure nor any explanation of why such hostility would cause Dr. Friedman to insist at that time that Dr. Sussman remain rather than leave the hospital Dr. Sussman has offered circumstantial evidence which could support an inference that his disclosure played a role in his eventual termination and that the proffered reasons for his termination were pre textual. Accordingly defendants' motion for summary judgment on plaintiff's claim of sexual orientation discrimination is denied.

IV. State Common Law Claims

A. Defamation

In his notice of claim filed before the commencement of this action plaintiff identified several defamatory statements allegedly made by defendants. See Def. Ex. U. Specifically the notice of claim alleges that Dr. Friedman stated on March 8 1994 that Dr. Sussman was the "worst intern [Dr. Friedman] had ever had to supervise in 20 years " that Dr. Sussman was "completely incompetent" and a "danger to patients " and that "it was not safe to have [Dr. Sussman] on the [hospital] wards." Id. In his complaint in this action plaintiff asserts a claim for defamation based on these statements. See Complaint P 58. The complaint also alleges a number of other statements not mentioned in plaintiff's notice of claim including:

(1) Dr. Friedman's statement to an attending physician that he was "not to be seen with" Dr. Sussman "not to talk with [Dr. Sussman] or help him in any way " and that he "should not help [Dr. Sussman] obtain xeroxing or envelopes " Complaint P 58;

(2) hospital lists of CIH residents and physicians which allegedly omitted Dr. Sussman's name thereby indicating to his associates that he "was being accused of some horrendous nonprofessional conduct or character " Complaint PP 56-57;

(3) academic evaluations and disciplinary records which were allegedly falsified by Dr. Friedman Complaint P 59; and

(4) CIH's May 26 1994 letter to OPMC stating that Dr. Sussman had been terminated for "gross negligence" and "misconduct " and additional information provided to OPMC by the defendants during its investigation Complaint P 60A Def. Ex. R.

Defendants contend that the alleged defamatory statements raised for the first time in plaintiff's complaint are subject to dismissal because plaintiff failed to include these statements in his notice of claim. See N.Y. Gen. Mun. Law SEC. 50-e[2] (requiring claimant to set forth among other things "the nature of the claim" and "the time when the place where and the manner in which the claim arose"). After comparing plaintiff's notice of claim with the allegations of the complaint and reviewing the applicable law we conclude that defendants' position is meritorious but only to the following extent. *fn8 Insofar as plaintiff's defamation claims are asserted against defendants HHC and CIH defendants are correct that plaintiff's failure to provide timely notice of these additional statements precludes plaintiff from pursuing a defamation claim against HHC and CIH stemming from these alleged statements. However insofar as these additional statements are asserted as the basis for liability against Dr. Friedman in his individual capacity the proper analysis under New York law is somewhat more complicated. The notice of claim requirement of General Municipal Law SEC. 50-e applies to claims against "individual defendants only if the defendant [public corporation] . . . is obligated to indemnify them " which "in turn depends upon the resolution of the fact-sensitive question of whether [defendants] were acting within the scope of their employment . . . in committing the alleged tortious acts." See International Shared Services Inc. v. County of Nassau 222 A.D.2d 407 634 N.Y.S.2d 722 724 (2d Dep't 1995). The record before Court does not contain sufficient evidence upon which to resolve the scope of employment issue. Accordingly plaintiff's claim against Dr. Friedman in his individual capacity insofar as it asserts liability for defamatory statements not raised in the notice of claim survives defendants' instant motion.

We next address the nature of plaintiff's defamation claim. Defendants argue in their reply brief without significant elaboration that the statements allegedly made by Dr. Friedman about Dr. Sussman are a matter of opinion and therefore not actionable. As the New York Court of Appeals has recognized "since falsity is a necessary element of a defamation cause of action and only 'facts' are capable of being proven false 'it follows that only statements alleging facts can properly be the subject of a defamation action.'" Gross v. New York Times Co. 82 N.Y.2d 146 603 N.Y.S.2d 813 817 623 N.E.2d 1163 (1993) (quoting 600 W. 115th St. Corp. v. Von Gutfeld 80 N.Y.2d 130 589 N.Y.S.2d 825 829 603 N.E.2d 930 (1992)); accord Brian v. Richardson 87 N.Y.2d 46 637 N.Y.S.2d 347 350 660 N.E.2d 1126 (1995). The factors to be considered in distinguishing between assertions of fact and non actionable expressions of opinion are: (1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal to readers or listeners that what is being read or heard is likely to be opinion and not fact. Id.

On the facts at bar defendants' contention that Dr. Friedman's statements are matters of opinion and therefore not actionable sweeps too broadly. Certain of Dr. Friedman's alleged remarks regarding Dr. Sussman's professional competence -- including those statements referenced in plaintiffs notice of claim -- state or imply assertions of fact about Dr. Sussman's professional competence that are capable of being proven true or false and the context of the statements does not detract from this conclusion. However other alleged statements by Dr. Friedman -- including his alleged instruction to an unnamed attending physician that he should not be seen with Dr. Sussman or assist him -- do not appear to contain or imply assertions of provably false facts and are therefore not actionable. At trial plaintiff's proof on his defamation claim will obviously be limited to those statements that contain or imply assertions of fact which are capable of being proven true or false.

Assuming for the purposes of their motion that Dr. Friedman actually made the alleged defamatory statements defendants also contend that all of his statements are qualifiedly privileged. See Norwood v. City of New York 203 A.D.2d 147 610 N.Y.S.2d 249 251 (1st Dep't 1994) ("The qualified privilege cloaks certain statements even if defamatory in order to serve a societal interest in encouraging people who have a legal or moral duty to respond to inquiries to communicate freely."); Liberman v. Gelstein 80 N.Y.2d 429 590 N.Y.S.2d 857 862 605 N.E.2d 344 (1992); Meller v. Tancer 174 A.D.2d 374 571 N.Y.S.2d 214 216 (1st Dep't 1991). The qualified privilege attaches when statements are made between individuals who share a common interest. Id. Defamatory statements made by a hospital official to other hospital officials regarding a matter of concern to the hospital such as the performance of hospital staff members have been held to be qualifiedly privileged. Murphy v. Herfort 140 A.D.2d 415 528 N.Y.S.2d 117 119 (2d Dep't 1988). However the rebuttable presumption of good faith erected by a qualified privilege may be defeated by a showing (1) that the statement was false and (2) that the defendant abused its qualified privilege. Weldy v. Piedmont Airlines Inc. 985 F.2d 57 62 (2d Cir. 1993) (citations omitted). "A plaintiff may demonstrate abuse of the privilege by proving that the defendant acted with (1) common law malice or (2) outside the scope of the privilege or (3) with knowledge that the statement was false or with a reckless disregard as to its truth." Id. (citations omitted). After carefully considering the record this Court concludes that there are genuine issues of material fact as to whether or not Dr. Friedman abused the qualified privilege.

In sum Dr. Sussman may pursue his defamation claim against all three defendants based on the alleged defamatory statements that are identified in the notice of claim. Plaintiff's claim against HHC and CIH based on alleged statements not identified in the notice of claim is dismissed for failure to comply with Unconsolidated Law SEC. 7401 and General Municipal Law SEC. 50-e. Plaintiff may however pursue his claim based on additional statements not referenced in the notice of claim against Dr. Friedman individually unless defendants demonstrate that HHC is obligated to indemnify Dr. Friedman for this claim in which case plaintiff's failure to file a notice of claim will be dispositive.

B. Tortious Interference

Dr. Sussman alleges in his complaint that defendants tortiously interfered with his prospective business and professional relationships by acting willfully and with malice in their communications with OPMC the state agency responsible for licensing and disciplining physicians in New York. Complaint P 82. He claims that the purpose of these communications "was to put a black mark on plaintiff's record which would be with him forever and severely restrict if not totally prevent plaintiff from practicing medicine and enjoying the benefit of the medical education and degree in medicine which he had acquired." Id. P 83. Plaintiff also claims that defendants tortiously interfered with plaintiff's attempts to find employment at medical institutions and that Dr. Friedman filed a false report about Dr. Sussman with the American Board of Internal Medicine. See Pl. Mem. at 22; Pl. 3(g) PP 113-23 (citing Sussman Dec. PP 146-56).

Defendants contend that this claim should be dismissed as against all defendants because plaintiff failed to file a notice of claim regarding these allegations. *fn9 Because the facts surrounding this claim were not set forth in a timely notice of claim plaintiff's tortious interference claim against HHC and CIH is dismissed. *fn10 However notwithstanding the fact that he did not file a notice of claim plaintiff might still able to pursue this claim against Dr. Friedman in his individual capacity. Whether he may do so hinges on whether HHC is obligated to indemnify Dr. Friedman for this alleged tort see International Shared Services 634 N.Y.S.2d at 724 a fact-specific inquiry which cannot be resolved on the record before Court. Accordingly we consider defendants' arguments addressing the merits of plaintiff's tortious interference claim.

In order to state a claim for tortious interference with prospective economic advantage a plaintiff must show (1) business relations with a third party; (2) defendants' interference with those business relations; (3) defendants acted with the sole purpose of harming the plaintiff or used dishonest unfair or improper means; and (4) injury to the relationship. Purgess v. Sharrock 33 F.3d 134 141 (2d Cir. 1994) (citing Burba v. Rochester Gas and Elec. Corp. 139 A.D.2d 939 528 N.Y.S.2d 241 (4th Dep't 1988)); see also PPX Enterprises Inc. v. Audiofidelity Inc. 818 F.2d 266 269 (2d Cir. 1987).

Defendants contend that Dr. Sussman has no business relationship with OPMC "because plaintiff was not and currently is not a licensed physician." Def. Mem. at 30. For the purposes of this motion we assume that Dr. Sussman had a prospective business relationship with OPMC. However plaintiff has pointed to no evidence in the record demonstrating that Dr. Friedman was personally involved in the alleged tortious interference with plaintiff's relationship with OPMC. Dr. Friedman did not sign the May 26 1994 letter which precipitated OPMC's investigation and there is no evidence indicating that Dr. Friedman instigated its preparation. While there is evidence that Dr. Friedman was questioned by OPMC see Pl. 3(g) P 111 (citing Sussman Dec. P 143 and Pl. Ex. 55) plaintiff has pointed to no evidence in the record demonstrating what Dr. Friedman said during this interview. Accordingly defendants' motion for summary judgment on this claim insofar as it is addressed to Dr. Friedman's alleged tortious interference in Dr. Sussman's relations with OPMC is granted and such claim is dismissed.

As noted above plaintiff also claims that Dr. Friedman improperly and maliciously interfered with Dr. Sussman's relations with several potential employers and the American Board of Internal Medicine. Defendants have not responded to these allegations nor have they argued that they are improperly raised. *fn11 These allegations pose triable issues of fact which cannot be resolved on the present record.

In sum plaintiff's tortious interference claim against HHC and CIH is dismissed because of plaintiff's failure to file a notice of claim. However there are triable issues of fact with respect to certain of plaintiff's tortious interference allegations against Dr. Friedman in his individual capacity.

C. Breach of Contract

Dr. Sussman also claims that defendants breached his employment contract. He alleges that his dismissal from CIH's house staff violated certain "provisions of the Collective Bargaining Agreement specifically made a part of plaintiff's contract of employment " Complaint P 51 including those provisions which prohibit discrimination on the basis of sexual orientation and prohibit disciplinary action except for cause and only after completion of established procedures governing disciplinary action. Id.

Defendants move for summary judgment on this claim arguing that Dr. Sussman lacks standing to pursue a claim alleging breach of provisions of the collective bargaining agreement. Defendants contend that the collective bargaining agreement is a contract between plaintiff's union (CIR) and defendant HHC not between plaintiff and HHC. Noting that plaintiff's Individual House Staff Contract or IHSC is "subject to" the collective bargaining agreement *fn12 defendants contend that New York law makes clear that "as a general proposition when an employer and a union enter into a collective bargaining agreement that creates a grievance procedure an employee subject to [a collective bargaining] agreement may not sue the employer directly for breach of that agreement but most proceed through the union in accordance with the contract." Board of Education v. Ambach 70 N.Y.2d 501 522 N.Y.S.2d 831 834 517 N.E.2d 509 (1987). Here the collective bargaining agreement establishes a grievance procedure for challenging disciplinary action. Proposed disciplinary action becomes final unless rescinded by certain HHC officials or "the Committee [CIR] requests in writing to the Office of Collective Bargaining . . . that said charges and action be submitted to arbitration pursuant to this Article XV." Def. Ex. H (Article XV Section 5). Although CIR did file a request for arbitration on plaintiff's behalf this request was later withdrawn. At this point defendants contend the disciplinary action against plaintiff became final and plaintiff may not challenge it in a separate breach of contract action.

In response Dr. Sussman argues that defendants have misinterpreted plaintiff's legal position by incorrectly stating that plaintiff is suing for damages for breach of the collective bargaining agreements between plaintiff's union and HHC. Plaintiff contends that he "is suing defendants for damages sustained as a result of the breach of plaintiff's own employment contract as a resident at [CIH] which contract by its terms specifically incorporates specific provisions of the [collective bargaining agreement] including those provisions which prohibit discrimination against plaintiff on account of his sexual preference as well as disciplinary action against plaintiff except 'for cause' and only after the completion of established procedures." See Pl. Mem. at 36-37 (emphasis added).

Defendants' motion for summary judgment on this claim is well founded. As defendants note it is settled in New York that an employee subject to a collective bargaining agreement that creates a grievance procedure generally may not sue the employer directly for breach of that agreement but must instead proceed through the union in accordance with the agreement. Ambach supra 522 N.Y.S.2d at 834; Ponticello v. County of Suffolk 225 A.D.2d 751 640 N.Y.S.2d 169 170 (2d Dep't 1996); Tomlinson v. Board of Education 223 A.D.2d 636 636 N.Y.S.2d 855 856 (2d Dep't 1996); Neiman v. Kingsborough Community College 146 A.D.2d 612 536 N.Y.S.2d 843 844 (2d Dep't 1989). *fn13

Although Dr. Sussman contends that he is suing for breach of the IHSC which incorporates provisions of the collective bargaining agreement rather than for breach of the collective bargaining agreement itself this alleged distinction lacks significance. In Neiman the Appellate Division dismissed a terminated employee's action alleging breach of both an employment contract and a collective bargaining agreement concluding that "plaintiff's sole remedy for the alleged breach of contract lay in the grievance procedure" under the applicable collective bargaining agreement. See Neiman 536 N.Y.S.2d at 844. This result seems appropriate when as here the specific contractual provisions claimed to have been breached are set forth in the collective bargaining agreement not in the employment contract and the employment contract merely incorporates by reference provisions of the collective bargaining agreement.

In sum the collective bargaining agreement between plaintiff's union and HHC provides for arbitration of disputes regarding disciplinary action taken against interns and residents. When Dr. Sussman's union withdrew its request for arbitration the disciplinary action taken against Dr. Sussman became final and Dr. Sussman has no standing to bring a direct action against HHC for alleged breach of provisions of the collective bargaining agreement. Accordingly defendants' motion for summary judgment on Dr. Sussman's breach of contract claim is granted.

CONCLUSION

For the reasons set forth above defendants' motion for summary judgment is granted in part and denied in part. The motion is granted as to the following claims: (1) the Section 1983 claim alleging violation of plaintiff's First Amendment rights; (2) the Section 1983 due process claim to the extent it challenges plaintiff's reassignment from clinical duties without notice and a hearing; (3) the Section 1983 substantive due process claim; (4) the defamation claim against HHC and CIH based on alleged statements not identified in the notice of claim; (5) the tortious interference claim against HHC and CIH; (6) the tortious interference claim against Dr. Friedman individually to the extent it alleges that Dr. Friedman tortiously interfered in plaintiff's relations with OPMC; and (7) the breach of contract claim. In all other respects defendants' motion is denied. Plaintiff's cross-motion for partial summary judgment on his First Amendment claim is denied.