U.S. ex rel. Vito v. Canzoneri

DECISION & ORDER On April 27, 2020, the plaintiff-relator, George R. Vito, filed this action against Joseph R. Canzoneri; Advanced Podiatry Associates, PLLC (“APA”); and Healogics, Inc. Docket Item 1. He alleged that Canzoneri, APA, and Healogics violated the False Claims Act (“FCA”), 31 U.S.C. §3729 et seq.; the New York False Claims Act (“NYFCA”), N.Y. Finance Law §187 et seq.; and New York State common law by improperly reusing single-use medication vials, soliciting unearned payments from Vito, and retaliating against Vito for objecting to those practices. See id.; see also Docket Item 28. Vito asserted qui tam claims on behalf of the United States and New York State as well as retaliation claims on his own behalf. See Docket Item 1; Docket Item 28. On June 18, 2021, Vito filed an amended complaint. Docket Item 28. The defendants then moved to dismiss the amended complaint, Docket Items 32-34, and on March 22, 2022, this Court granted those motions in part, Docket Item 42. More specifically, the Court dismissed Vito’s qui tam common law fraud claim without leave to amend and found that his remaining claims were subject to dismissal but gave him leave to amend those claims. See id. Vito then filed a second amended complaint, Docket Item 44, and voluntarily dismissed his claims against Healogics, Docket Item 51. On June 24, 2022, APA and Canzoneri renewed their motion to dismiss, Docket Item 55; on July 8, 2022, Vito responded to that motion, Docket Item 56, and on July 15, 2022, APA and Canzoneri replied, Docket Item 57. For the reasons that follow, Vito’s statutory qui tam claims are dismissed because he still has not pleaded the submission of false claims with sufficient particularity. Vito’s retaliation claims against Canzoneri also are dismissed, but his retaliation claims against APA may proceed. FACTUAL BACKGROUND¹ Vito and Canzoneri are both podiatrists who practice in New York State. Docket Item 44 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