Davis v. Zeh, 532856

• Court: New York Supreme Court Appellate Division
• Writing for the Court: Colangelo, J.
• Citation: 200 A.D.3d 1275,160 N.Y.S.3d 144
• Parties: Jonathan H.F. DAVIS, Appellant—Respondent, v. Matthew R. ZEH, Respondent—Appellant.
• Docket Number: 532856
• Decision Date: 09 December 2021

200 A.D.3d 1275
160 N.Y.S.3d 144

Jonathan H.F. DAVIS, Appellant—Respondent,
v.
Matthew R. ZEH, Respondent—Appellant.

532856

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

Calendar Date: October 13, 2021
Decided and Entered: December 9, 2021

160 N.Y.S.3d 145

Law Office of James M. Hartmann, Delhi (James M. Hartmann of counsel), for appellant-respondent.

Cooper Erving & Savage LLP, Albany (Carlo A.C. de Oliveira of counsel), for respondent-appellant.

Before: Egan Jr., J.P., Lynch, Clark, Pritzker and Colangelo, JJ.

MEMORANDUM AND ORDER

Colangelo, J.

(1) Cross appeals from that part of an order of the Supreme Court (Northrup Jr., J.), entered October 5, 2020 in Delaware County, which (a) partially granted defendant's cross motion for partial summary judgment on his first counterclaim and denied said cross motion for summary judgment dismissing the complaint, and (b) partially granted plaintiff's cross motion for summary judgment dismissing defendant's third counterclaim, and (2) appeal from an order of said court, entered January 27, 2021 in Delaware County, which, upon reargument, granted defendant's cross motion for summary judgment dismissing the complaint.

Plaintiff is a veterinarian and the sole proprietor of a veterinary practice known as Valley Veterinary Associates (hereinafter VVA). Defendant, also a veterinarian, had been employed by plaintiff since 2012 pursuant to two written contracts of employment, each for a two-year period. Plaintiff terminated defendant's employment with VVA in March 2018. At the time of his termination, defendant's employment with VVA was also governed by a written employment contract (hereinafter the contract). Unlike the prior two contracts, which expired after a stated period of time, the contract at issue was to expire upon a stated occurrence that was estimated to occur within one year – upon defendant buying into VVA with the potential of becoming a partner in the practice. As relevant here, the contract provided that either party seeking to terminate or renew the contract was required to provide the other with 90 days' notice. Further,

160 N.Y.S.3d 146

the contract contained a restrictive covenant – in the event of defendant's termination, defendant would be barred from opening a veterinary practice within 40 miles of VVA for a period of five years. The contract also expressly represented that defendant had received and read the employment manual maintained by VVA, which, as relevant here, defined behavior that, if committed, would justify immediate termination for cause.

It is undisputed that plaintiff terminated defendant's employment in March 2018 without providing defendant with the contractually required notice and that, a few months later, defendant opened his own veterinary practice within 40 miles of VVA. After an unsuccessful letter to cease and desist, plaintiff commenced this action seeking to enforce the covenant not to compete and seeking damages in relation to defendant's purported breach of contract. Defendant joined issue and thereafter filed an amended answer raising several counterclaims, the first of which asserted that plaintiff breached the employment contract by failing to provide 90 days' notice prior to termination. As relevant here, plaintiff cross-moved for summary judgment seeking dismissal of defendant's second, third and fourth counterclaims, alleging fraudulent inducement, breach of fiduciary duty and judicial dissolution, respectively; said cross motion was granted unopposed. The order of dismissal was thereafter vacated and defendant submitted opposition and cross-moved for summary judgment dismissing plaintiff's complaint and for partial summary judgment on his first and third counterclaims.¹

By order entered October 5, 2020, Supreme Court granted partial summary judgment to defendant on his breach of contract and judicial dissolution counterclaims and granted plaintiff's cross motion dismissing the second and third counterclaims. Although the court found that plaintiff had breached the contract by failing to give defendant the contractually required 90 days' notice prior to terminating him, the court initially denied defendant's cross motion for summary judgment seeking dismissal of plaintiff's complaint; however, upon defendant's motion to reargue, the court granted defendant's cross motion for summary judgment dismissing plaintiff's complaint by order entered January 27, 2021. Plaintiff appeals from that part of the October 5, 2020 order as granted defendant's cross motion for partial summary...