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Falcone v. Middlesex County Medical Society

Decided: May 6, 1965.

ITALO J. FALCONE, PLAINTIFF-APPELLANT,
v.
MIDDLESEX COUNTY MEDICAL SOCIETY, AN UNINCORPORATED ASSOCIATION, ET AL., DEFENDANTS-RESPONDENTS



Conford, Kilkenny and Lewis. The opinion of the court was delivered by Kilkenny, J.A.D.

Kilkenny

The Superior Court, Law Division, granted summary judgment, on motion of defendant medical society, dismissing so much of count one and count two of the complaint as sought damages to and including July 21, 1960. Summary judgment for the dismissal of count three was denied. Count four of the complaint applies only to defendant hospitals, not defendant medical society, and was not involved in the motion for summary judgment.

Plaintiff appealed, by leave of the court, from the partial dismissal of the first two counts as aforesaid, and defendant medical society was permitted to cross-appeal from the denial of dismissal of the third count. The cross-appeal was withdrawn

at oral argument. It is, therefore, dismissed without further comment. We consider only the propriety of the partial dismissal of the first two counts of the complaint.

The judgment is affirmed essentially for the reasons expressed by Judge Molineux in his opinion, 82 N.J. Super. 133 (Law Div. 1964), as supplemented herein.

Licensed in 1950 to practice medicine and surgery in New Jersey, plaintiff applied in 1953 to be admitted as a member of defendant medical society, was admitted thereafter as an "associate" member, and continued as such until November 29, 1956, when he applied for "active" membership and was declared ineligible for membership because he had been "licensed to practice as a Doctor of Osteopathy and not as a Doctor of Medicine."

A complaint in a proceeding in lieu of prerogative writs was filed by plaintiff in the Law Division on September 22, 1958 against defendant medical society alone, and plaintiff alleged therein, inter alia, that as a consequence of defendant's conduct in not admitting him to active membership there "has been an impairment of the plaintiff's right to earn a livelihood and to obtain the economic advantages to which he was justly entitled." Plaintiff prayed for judgment:

"First: Directing the defendant to admit the plaintiff as an active member of the defendant.

Second: To adjudicate the plaintiff's rights with respect to the grievances alleged in this complaint.

Third: For such other judgment as may be just and legal."

The pretrial order also asserted that, by reason of the action of defendant society, plaintiff had been precluded from practicing his profession or having his patients admitted in two of the hospitals in the county, and he sought "the aid of the court, because the action of the defendant seriously curtails his ability to practice medicine to the best advantages." However, under the subdivision wherein plaintiff is required to specify all ...


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