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Supreme Court, Appellate Division, First Department, New York.

Marcia HARRIS, M.D., Plaintiff–Respondent, v. PATIENTS MEDICAL, P.C., Defendant–Appellant.

Patients Medical, P.C., Third–Party Plaintiff–Appellant, v. John P. Salerno M.D., et al., Third–Party Defendants.


Decided: February 07, 2019

Acosta, P.J., Gische, Kapnick, Gesmer, Singh, JJ. Bowles Liberman & Newman LLP, New York (David K. Bowles of counsel, New York), for appellant. Kaiser Saurborn & Mair, P.C., New York (Henry L. Saurborn, Jr. of counsel, New York), for respondent.

A preliminary injunction is an extraordinary provisional remedy which will only issue where the proponent demonstrates (1) a likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) a balance of equities tipping in its favor (CPLR 6301;  Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 840, 800 N.Y.S.2d 48, 833 N.E.2d 191 [2005] ).  The granting of such relief is committed to the sound discretion of the motion court (Doe v. Axelrod, 73 N.Y.2d 748, 536 N.Y.S.2d 44, 532 N.E.2d 1272 [1988] ).  Here, the court providently exercised its discretion in denying a preliminary injunction.

Patients Medical has not demonstrated a likelihood of success on the merits.  Under New York law, “[a] restraint is reasonable only if it:  (1) is no greater than is required for the protection of the legitimate interest of the employer, (2) does not impose undue hardship on the employee, and (3) is not injurious to the public” (BDO Seidman v. Hirshberg, 93 N.Y.2d 382 388–389, 690 N.Y.S.2d 854, 712 N.E.2d 1220 [1999] ).  In cases between professionals, courts recognize the legitimate interest an employer has against unfair competition, but, to avoid broad restraints on competition, have limited such employer interests “to the protection against misappropriation of the employer's trade secrets or of confidential customer lists, or protection from competition by a former employee whose services are unique or extraordinary” (id. at 389, 690 N.Y.S.2d 854, 712 N.E.2d 1220 ).  We have found restrictive covenants to be unenforceable where the employees have not used the employers' confidential business information, or where the employees' services were not extraordinary or unique (Buhler v. Maloney Consulting, 299 A.D.2d 190, 749 N.Y.S.2d 867 [1st Dept. 2002];  TMP Worldwide v. Franzino, 269 A.D.2d 332, 703 N.Y.S.2d 183 [1st Dept. 2000] ).

Patients Medical has not established that Harris's OB/GYN and ancillary services are unique or extraordinary such that they gave her an unfair advantage over its practice.  Patients Medical has not demonstrated an unfair competitive advantage as it is undisputed that Harris brought her own OB/GYN practice to Patients Medical and that Patients Medical did not offer OB/GYN care after Harris left the practice.  Accordingly, Patients Medical has not shown that the restrictive covenants were necessary to protect its legitimate interests.

We find that irreparable harm is not established as monetary damages is an adequate remedy (Metropolitan Med. Group, v. Eaton, 154 A.D.2d 252, 546 N.Y.S.2d 90 [1st Dept. 1989];  see also Sterling Fifth Assoc. v. Carpentille Corp., 5 A.D.3d 328, 774 N.Y.S.2d 140 [1st Dept. 2004] ).  Moreover, the equities tip in Harris' favor.  Granting a preliminary injunction would disrupt the physician-patient relationship she has with her current patients.

We have considered Patients Medical's remaining arguments and find them unavailing.