| M.H. Mandelbaum Orthotic & Prosthetic Servs., Inc. vWerner |
| 2015 NY Slip Op 02099 [126 AD3d 859] |
| March 18, 2015 |
| Appellate Division, Second Department |
[*1]
| M.H. Mandelbaum Orthotic & Prosthetic Services,Inc., et al., Respondents, v Marc Werner, Appellant. |
Lewis Johs Avallone Aviles, LLP, Islandia, N.Y. (Robert A. Lifson and Bryan F.Lewis of counsel), and Bryan Cave, LLP, New York, N.Y. (Jay P. Warren, David P.Kasakove, and Anne T. Redcross of counsel), for appellant (one brief filed).
Garfunkel Wild, P.C., Great Neck, N.Y. (Roy W. Breitenbach and Michael J. Keane,Jr., of counsel), for respondents.
In action, inter alia, for injunctive relief and to recover damages for breach ofcontract, the defendant appeals, as limited by his brief, from so much of an order of theSupreme Court, Suffolk County (Emerson, J.), dated December 13, 2013, as grantedthose branches of the plaintiffs' motion which were for summary judgment on the issueof liability on the referral source solicitation and noncompetition claims asserted in thefirst cause of action and for a preliminary injunction and denied that branch of his crossmotion which was for summary judgment dismissing the referral source solicitationclaim in the first cause of action.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting that branch of the plaintiffs' motion which was for a preliminary injunction andsubstituting therefor a provision denying that branch of the motion; as so modified, theorder is affirmed insofar as appealed from, without costs or disbursements.
The Supreme Court properly granted those branches of the plaintiffs' motion whichwere for summary judgment on the issue of liability on the referral source solicitation andnoncompetition claims asserted in the first cause of action. "Covenants not to competewill be enforced if reasonably limited as to time, geographic area, and scope, arenecessary to protect the employer's interests, not harmful to the public, and not undulyburdensome" (Ricca vOuzounian, 51 AD3d 997, 998 [2008]; see BDO Seidman v Hirshberg,93 NY2d 382, 389 [1999]; Arthur J. Gallagher & Co. v Marchese, 96 AD3d 791,792 [2012]).
Initially, the Supreme Court erred in rejecting the parties' arguments concerning theenforceability of the restrictive covenants based on its determination of the issue inevaluating the plaintiffs' prior motion for a preliminary injunction and the law of the casedoctrine (see Town of Concordv Duwe, 4 NY3d 870, 875 [2005]; Icy Splash Food & Beverage, Inc. v Henckel, 14 AD3d595, 596 [2005]; Kaplan v Queens Optometric Assoc., 293 AD2d 449[2002]). Nevertheless, on the merits, the court properly granted those branches of theplaintiffs' motion which were for summary judgment on the [*2]issue of liability on the referral source solicitation andnoncompetition claims asserted in the first cause of action. The plaintiffs demonstrated,prima facie, that the underlying covenants were enforceable under the circumstances ofthis case and that the defendant had breached them, and the defendant failed to raise atriable issue of fact in opposition to their prima facie showing (see Smith v Meridian Tech.,Inc., 86 AD3d 557, 560 [2011]; Michael G. Kessler & Assoc., Ltd. v White, 28 AD3d724, 725 [2006]).
However, under the circumstances of this case, the Supreme Court improvidentlyexercised its discretion in granting that branch of the plaintiffs' motion which was for apreliminary injunction. To obtain a preliminary injunction, a movant must demonstrate,by clear and convincing evidence, (1) a likelihood of success on the merits, (2)irreparable injury if a preliminary injunction is not granted, and (3) a balance of equitiesin his or her favor (see CPLR 6301; Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d839, 840 [2005]; Doe v Axelrod, 73 NY2d 748, 750 [1988]). The decision togrant or deny a preliminary injunction lies within the sound discretion of the SupremeCourt (see Doe v Axelrod, 73 NY2d at 750; Arthur J. Gallagher & Co. vMarchese, 96 AD3d at 792). Here, the plaintiffs failed to make the requisiteshowing. Accordingly, the Supreme Court should not have granted that branch of theplaintiffs' motion which was for a preliminary injunction (see Town of Southampton vCounty of Suffolk, 88 AD3d 988, 989 [2011]; Liotta v Mattone, 71 AD3d741 [2010]).
The defendant's remaining contentions are without merit. Rivera, J.P., Dickerson,Roman and Duffy, JJ., concur. [Prior Case History: 2013 NY Slip Op33237(U).]