| Ford v Cardiovascular Specialists, P.C. |
| 2010 NY Slip Op 02222 [71 AD3d 1429] |
| March 19, 2010 |
| Appellate Division, Fourth Department |
| Timothy Ford, Respondent, v Cardiovascular Specialists, P.C.,Doing Business as New York Heart Center, Appellant. |
—[*1] Ali, Pappas & Cox, P.C., Syracuse (P. Douglas Dodd of counsel), forplaintiff-respondent.
Appeal from a judgment (denominated order and judgment) of the Supreme Court,Onondaga County (John C. Cherundolo, A.J.), entered April 24, 2009 in a declaratory judgmentaction. The judgment declared that the noncompetition covenant in the employment agreementbetween the parties is invalid.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawwithout costs, the declaration is vacated and the matter is remitted to Supreme Court, OnondagaCounty, for further proceedings in accordance with the following memorandum: Shortly aftercommencing this declaratory judgment action, plaintiff moved by order to show cause for apreliminary injunction enjoining defendant, his former employer, from enforcing thenoncompetition covenant in the parties' employment agreement. Defendant opposed the motionon various grounds, among them that there is no justiciable controversy between the partiesbecause plaintiff had not yet secured an offer for new employment within the proscribed area.Supreme Court did not rule on plaintiff's motion for a preliminary injunction but instead reachedthe ultimate merits of the action and declared the noncompetition covenant invalid. We reverse.
We reject at the outset defendant's contention that the action should have been dismissedbecause plaintiff failed to present a justiciable controversy, and the court thus impermissiblyissued an advisory opinion in granting declaratory relief. While defendant is correct that arequest for such relief "is premature if the future event is beyond the control of the parties andmay never take place, . . . a claim is justiciable if it is likely that the futurecontingency will occur" (Capital Dist.Enters., LLC v Windsor Dev. of Albany, Inc., 53 AD3d 767, 769 [2008]; seeCuomo v Long Is. Light. Co., 71 NY2d 349, 354 [1988]). Here, it is undisputed thatdefendant notified plaintiff of its intent to enforce the restrictive covenant and that plaintiffestablished his intent to seek employment within the proscribed area. Under the circumstances,the complaint stated a cause of action for declaratory relief (see Goodman v Reisch, 220AD2d 383 [1995]).
The court erred, however, in granting the ultimate relief requested in the complaint in viewof the procedural posture of the action, i.e., plaintiff's motion for a preliminary injunction. Thecourt did not notify the parties of its intent to reach the merits of the action rather than to rule[*2]on the motion for a preliminary injunction (see generally Case v Cayuga County,60 AD3d 1426, 1427-1428 [2009], lv dismissed 13 NY3d 770 [2009]).Consequently, neither party had an opportunity to conduct discovery or to submit extrinsicevidence concerning the parties' intent. Indeed, in view of the court's determination that theemployment agreement was ambiguous, such extrinsic evidence would have been relevant, if notdispositive (see Pezzi v O'Brien & Gere of N. Am., 309 AD2d 1295, 1296 [2003];Doldan v Fenner, 309 AD2d 1274, 1275 [2003]). We therefore reverse the judgment,vacate the declaration and remit the matter to Supreme Court to determine plaintiff's motion for apreliminary injunction. Present—Smith, J.P., Peradotto, Lindley, Green and Gorski, JJ.