In the Matter of a Mail Dispute
Between

DAVID S. RITHOLTZ, DDS, PC

and

DALE D. GOLDSCHLAG, DDS, PC

P.S. Docket No.  MD 03-347

APPEARANCE FOR DISPUTANT DAVID S. RITHOLTZ, DDS, PC:
Noelle Kowalczyk, Esq.
Kasowitz, Benson, Torres & Friedman, LLP
1633 Broadway
New York, NY  10019-6799

APPEARANCE FOR DISPUTANT DALE D. GOLDSCHLAG, DDS, PC:
Adam B. Kaufman, Esq.
Adam B. Kaufman & Associates, PLLC
585 Stewart Avenue, Suite 302
Garden City, NY  11530-4701

INITIAL DECISION

            This mail dispute has been docketed pursuant to Postal Operations Manual (POM 9, July 2002) Section 616.21, which requires the Chief Field Counsel to forward certain unresolved mail disputes to the Judicial Officer for resolution.  The mail in dispute is that addressed to Dale D. Goldschlag, DDS, 150 Broadway, Room 1310, New York, NY 10038.  The New York City Postmaster is currently holding the mail.

            Both parties filed sworn statements in accordance with 39 C.F.R. §965.5, along with supporting documents.  Dr. Ritholtz submitted a supplemental affidavit, in accordance with 39 C.F.R. §965.6.  Dr. Goldschlag also submitted a supplemental affidavit, which Dr. Ritholtz asks not be considered because it was filed beyond the ten (10) day limit prescribed in §965.6.^[1]  The following findings of fact are based on the material submitted by both parties and the material forwarded by the United States Postal Service Law Department, New York Metro Office.

FINDINGS OF FACT

            1.  Dr. Ritholtz has practiced general dentistry at 150 Broadway, Suite 1310, in New York City for many years.  His professional corporation, David S. Ritholtz, D.D.S., P.C, is the lessee of that office address.  Dr. Ritholtz is the sole owner and director of this corporation.  (Ritholtz affidavit).

            2.  In 1996, Dr. Goldschlag began providing periodontal and dental implant services one day per week at 150 Broadway, Suite 1310.  There is no written agreement as to the professional relationship between Dr. Ritholtz and Dr. Goldschlag.  (Goldschlag affidavit; Ritholtz affidavit; Judge Freedman’s September 29, 2003 Decision).

            3.  Dr. Goldschlag formed a professional corporation, Dale D. Goldschlag, D.D.S., P.C., in 1997.  He is the sole owner and director of this corporation. (Goldschlag affidavit).

            4.  Patients for whom Dr. Goldschlag performed services at 150 Broadway were billed by Dr. Ritholtz.  Payments from these patients, or their insurance companies, however they were addressed, were received by Dr. Ritholtz, who withheld certain amounts for office overhead expenses, and paid the remainder to Dr. Goldschlag.  (Ritholtz affidavit; Goldschlag June 23, 2003 affidavit, filed in New York State Supreme Court case).

            5.  Dr. Ritholtz and Dr. Goldschlag terminated their relationship in May 2003.  They differ as to exactly what precipitated this, and as to who formally initiated the termination, but it is clear that Dr. Ritholtz has denied Dr. Goldschlag access to the office at 150 Broadway since May 22, 2003.  (Ritholtz affidavit; Goldschlag affidavit).

            6.  On May 24, 2003, Dr. Goldschlag submitted a change of address form to the New York City Post Office, directing that mail addressed to him at 150 Broadway, Room 1310, New York, NY 10038, be forwarded to him at 220 Riverside Blvd., Apt. 44C, New York, NY 10069-1015.  (Form included in file forwarded by Law Department).

            7.  Immediately upon notification that Dr. Goldschlag had submitted the change of address order, Dr. Ritholtz protested and this mail dispute arose.  Both parties submitted a large volume of documents to the Law Department’s New York Metro Office.  On July 25, 2003, the Law Department issued a decision that the disputed mail should be delivered as addressed.  This was based on the rule stated in Postal Operations Manual §614.1, and a finding that Dr. Ritholtz owned the business at 150 Broadway, Room 1310, and that Dr. Goldschlag was a contractor during the time he worked at that address.  (Attachments to Law Department forwarding letter).

            8.  On August 6, 2003, after receipt of additional documents from Dr. Goldschlag, which included his Certificate of Incorporation, and excerpts from an affidavit by Dr. Ritholtz suggesting that Dr. Goldschlag’s practice was separate from his own, the Law Department informed the parties that the mail would continue to be withheld and the matter would be reviewed further.  Both parties submitted additional documents, but the Law Department did not issue another decision.  On September 11, 2003, in accordance with POM §616.21, the Law Department forwarded the case to the Judicial Officer Department for resolution.  (Law Department forwarding letter and attachments).

            9.  On June 2, 2003, Dr. Goldschlag sued Dr. Ritholtz in the New York State Supreme Court, New York County, alleging breach of an oral contract, fraudulent inducement, and conversion of property.  He also asked for injunctive relief.  On June 3, 2003, Judge Freedman issued a Temporary Restraining Order requiring Dr. Ritholtz to transfer to Dr. Goldschlag a telephone line that was dedicated to periodontal services, and to provide Dr. Goldschlag with “copies of records of patients needing and requesting follow-up periodontal treatment.”  (Judge Freedman’s Decision, September 29, 2003, attached as Ex. F to Ritholtz affidavit).

            10.  Dr. Ritholtz filed a motion to dismiss Dr. Goldschlag’s claims, and Judge Freedman issued a decision on September 29, 2003.  The decision states, “[T]he undisputed facts are that plaintiff [Dr. Goldschlag] worked one day a week for seven years as an independent contractor in defendant’s [Dr. Ritholtz] dental office at 150 Broadway.”  The decision also states that, “[D]uring that period, the parties had discussions about plaintiff obtaining an equity interest in defendant’s practice, but no specific agreement was ever reached.”  The Court concluded that “the fraudulent inducement and breach of contract claims must fail.”  With respect to plaintiff’s conversion claim, the Court noted the parties’ agreement that plaintiff was entitled to all his tangible property, including equipment, but stated, “[P]laintiff does not have any ownership interest in patient files except to the extent that patients authorize transfer of such items in writing to plaintiff.  During the time plaintiff worked in defendant’s office, all files were the property of David Ritholtz, P.C.”  (Judge Freedman’s Order, September 29, 2003, attached as Ex. F to Ritholtz affidavit).

            11.  Postal Operations Manual (POM) Section 614.1 provides as follows:

“All mail addressed to a governmental or nongovernmental organization (including but not limited to corporations, firms, sole proprietorships, partnerships, joint ventures, and associations) or to an individual by name or title (an official, employee, contractor, client, agent, etc.) at the address of the organization is delivered to the organization.  This regulation also applies to mail addressed in this manner to former officials, employees, contractors, agents, clients, or others associated with the organization. . . . ”

DECISION

            This dispute arose because some of the disputed mail contains checks from patients or their insurance carriers, and both parties claim entitlement to at least some portion of those checks.  The result is governed by the POM provision quoted above, the findings made by Judge Freedman, and the past practice of the parties.

            Dr. Goldschlag’s claim to the mail is based on an argument that his dental practice at 150 Broadway, Room 1310, was entirely his own, separate from Dr. Ritholtz’s practice.  Therefore, he contends, any mail addressed to him is intended for him.  The preponderance of the evidence does not support this position.  The quotations from Dr. Ritholtz’s Supreme Court affidavit, on which Dr. Goldschlag relied in his request to the Law Department to reconsider its July 25, 2003 decision, were statements made by Dr. Ritholtz in response to Dr. Goldschlag’s allegations of fraudulent inducement and breach of contract.  Neither those statements, nor the fact that Dr. Goldschlag incorporated his practice, establish that he was not associated with Dr. Ritholtz’s practice.

            Judge Freedman found that Dr. Goldschlag was a contractor working in Dr. Ritholtz’s office.  That finding is consistent with statements made in Dr. Goldschlag’s affidavits.  It is also consistent with the parties’ billing practice (see Finding #4).    Under the provisions of POM §614.1, therefore, mail addressed to 150 Broadway, Room 1310, should continue to be delivered to that address.

            This decision deals only with delivery of mail.  It does not determine the ownership of the contents, or attempt to resolve any financial, or other, disputes between the parties.  If either party obtains a court order directing delivery of the mail, postal regulations provide that the mail will be delivered according to such an order.  POM §616.3.  If Dr. Ritholtz receives any mail addressed to Dr. Goldschlag that is clearly intended for Dr. Goldschlag personally, or that is unrelated to Dr. Ritholtz’s practice, it is his responsibility to forward that mail.

            The Judicial Officer should issue an Order to the New York City Postmaster directing that mail addressed to Dale D. Goldschlag, DDS, 150 Broadway, Room 1310, New York, NY 10038 be delivered as addressed.

Bruce R. Houston
Chief Administrative Law Judge

[1]  As Dr. Goldschlag’s supplemental material does not affect the result, it is not necessary to rule on this objection.