| Ricca v Ouzounian |
| 2008 NY Slip Op 04852 [51 AD3d 997] |
| May 27, 2008 |
| Appellate Division, Second Department |
| Richard J. Ricca et al., Appellants, v Steven P. Ouzounianet al., Respondents. |
—[*1] Cartier, Bernstein, Auerbach & Dazzo, P.C., Patchogue, N.Y. (William J. Bernstein ofcounsel), for respondents.
In an action to enforce a restrictive covenant contained in an employment agreement and torecover damages for breach of the agreement, the plaintiffs appeal from an order of the SupremeCourt, Suffolk County (Weber, J.), dated July 27, 2007, which denied their motion for apreliminary injunction, inter alia, barring the defendant Steven P. Ouzounian from performingsurgery 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 anemployment agreement with the plaintiffs. The employment agreement contained a restrictivecovenant which provided that upon termination of the agreement, the defendant could notperform surgery within 15 miles of the plaintiffs' medical office for a period of two years. Theemployment agreement also contained a nonsolicitation clause.
To be entitled to a preliminary injunction, a movant must establish (1) the likelihood ofsuccess on the merits, (2) irreparable injury absent granting the preliminary injunction, and (3) abalancing of the equities in the movant's favor (see Nobu Next Door, LLC v Fine Arts Hous.,Inc., 4 NY3d 839 [2005]; Gagnon Bus Co., Inc. v Vallo Transp., Ltd., 13 AD3d 334[2004]). Covenants not to compete [*2]will be enforced ifreasonably limited as to time, geographic area, and scope, are necessary to protect the employer'sinterests, not harmful to the public, and not unduly burdensome (see BDO Seidman vHirshberg, 93 NY2d 382 [1999]; Gelder Med. Group v Webber, 41 NY2d 680, 683[1977]; Albany Med. Coll. v Lobel, 296 AD2d 701, 702 [2002]).
Here, the plaintiffs made the requisite showing. The defendant's contention regardingpotential harm to the public is without merit because several other surgeons practice atSouthampton Hospital, where the defendant was practicing, and there are at least two otherhospitals in the area (see Gazzola-Kraenzlin v Westchester Med. Group, P.C., 10 AD3d700 [2004]; Albany Med. Coll. v Lobel, 296 AD2d 701 [2002]; Arnold R. Leiboff,M.D., P.C. v Pelaez, 249 AD2d 497 [1998]; Bollengier v Gulati, 233 AD2d 721[1996]).
In light of the foregoing, we need not reach the plaintiffs' remaining contention. Prudenti,P.J., Lifson, Santucci and Balkin, JJ., concur. [See 2007 NY Slip Op 32371(U).]