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U.S. and the State of New York ex rel. Vito v. Canzoneri

Dismissal of Claims in Absence of Amended Complaint in FCA Qui Tam Action Explained

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DECISION & ORDER On April 27, 2020, the plaintiff-relator, George R. Vito, filed this action alleging that the defendants, Joseph R. Canzoneri; Advanced Podiatry Associates, PLLC (“APA”); and Healogics, Inc., violated the False Claims Act (“FCA”), 31 U.S.C. §3729 et seq., and the New York False Claims Act (“NYFCA”), N.Y. Finance Law §187 et seq. Docket Item 1. More specifically, the complaint alleges that the defendants engaged in schemes to improperly solicit payments from Vito and reuse single-use medication vials. Id. Vito asserts qui tam claims on behalf of the United States and New York State. Docket Item 28. He also alleges that the defendants committed common law fraud and that Canzoneri and APA retaliated against him in violation of the FCA and NYFCA. Id. After Canzoneri and APA moved to dismiss the complaint, Docket Item 19, Vito filed an amended complaint, Docket Item 28. Canzoneri and APA renewed their motion to dismiss on July 12, 2021, Docket Item 34, and Healogics filed a separate motion to dismiss that same day, Docket Item 32. Vito responded to both motions on July 26, 2021, Docket Item 37, and the defendants replied a week later, Docket Items 38 and 39. For the following reasons, the defendants’ motions to dismiss are granted in part, and the remainder of their motions will be granted unless Vito amends his complaint to correct the deficiencies noted below. FACTUAL BACKGROUND1 Vito and Canzoneri are both podiatrists who practice in New York State. Docket Item 28 at

11-12. Vito previously worked at APA, a professional limited liability company “wholly owned by [] Canzoneri,” under “a July 23, 2018 Employment Agreement.” Id. at

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