RICCA v. OUZOUNIAN

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

Richard J. RICCA, etc., et al., appellants, v. Steven P. OUZOUNIAN, etc., et al., respondents.

Decided: May 27, 2008

A. GAIL PRUDENTI, P.J., ROBERT A. LIFSON, FRED T. SANTUCCI, and RUTH C. BALKIN, JJ. Forchelli Curto Schwartz Mineo Carlino & Cohn, LLP, Mineola, N.Y. (Donald Jay Schwartz and Richard C. Goldberg of counsel), for appellants. Cartier, Bernstein, Auerbach & Dazzo, P.C., Patchogue, N.Y. (William J. Bernstein of counsel), for respondents.

In an action to enforce a restrictive covenant contained in an employment agreement and to recover damages for breach of the agreement, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Weber, J.), dated July 27, 2007, which denied their motion for a preliminary injunction, inter alia, barring the defendant Steven P. Ouzounian from performing surgery within a 15-mile radius of the plaintiffs' medical office.

ORDERED that the order is reversed, on the law and the facts, with costs, and the plaintiffs' motion for a preliminary injunction is granted.

The defendant Steven P. Ouzounian (hereinafter the defendant), a surgeon, entered into an employment agreement with the plaintiffs.   The employment agreement contained a restrictive covenant which provided that upon termination of the agreement, the defendant could not perform surgery within 15 miles of the plaintiffs' medical office for a period of 2 years.   The employment agreement also contained a nonsolicitation clause.

 To be entitled to a preliminary injunction, a movant must establish (1) the likelihood of success on the merits, (2) irreparable injury absent granting the preliminary injunction, and (3) a balancing of the equities in the movant's favor (see Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 800 N.Y.S.2d 48, 833 N.E.2d 191;  Gagnon Bus Co., Inc. v. Vallo Transp., Ltd., 13 A.D.3d 334, 786 N.Y.S.2d 107).   Covenants not to compete will be enforced if reasonably limited as to time, geographic area, and scope, are necessary to protect the employer's interests, not harmful to the public, and not unduly burdensome (see BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 690 N.Y.S.2d 854, 712 N.E.2d 1220;  Gelder Med. Group v. Webber, 41 N.Y.2d 680, 683, 394 N.Y.S.2d 867, 363 N.E.2d 573;  Albany Med. Coll. v. Lobel, 296 A.D.2d 701, 702, 745 N.Y.S.2d 250).

 Here, the plaintiffs made the requisite showing.   The defendant's contention regarding potential harm to the public is without merit because several other surgeons practice at Southampton Hospital, where the defendant was practicing, and there are at least two other hospitals in the area (see Gazzola-Kraenzlin v. Westchester Med. Group, P.C., 10 A.D.3d 700, 782 N.Y.S.2d 115;  Albany Med. Coll. v. Lobel, 296 A.D.2d 701, 745 N.Y.S.2d 250;  Arnold R. Leiboff, M.D., P.C. v. Pelaez, 249 A.D.2d 497, 671 N.Y.S.2d 336;  Bollengier v. Gulati, 233 A.D.2d 721, 650 N.Y.S.2d 56).

In light of the foregoing, we need not reach the plaintiffs' remaining contention.

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