Smith v. Hurley
| Decision Date | 15 November 1995 |
| Parties | Henry M. SMITH, Respondent, v. John P. HURLEY, Appellant. |
| Court | New York Supreme Court — Appellate Division |
Lipsitz, Green, Fahringer, Roll, Salisbury and Cambria by Earl Cantwell, Buffalo, for Appellant.
Matusick, Spadafora and Verrastro by Joseph Bergen, Buffalo, for Respondent.
Before DENMAN, P.J., and LAWTON, DOERR, BALIO and BOEHM, JJ.
Plaintiff is a podiatrist who began practicing in Dansville, New York in 1985. On January 1, 1990, he and defendant, also a podiatrist, entered into an agreement under which defendant would practice in plaintiff's Dansville office and, in return, would pay plaintiff 50% of all gross fees received. The agreement provided that either party could terminate the association upon 30 days written notice and contained a covenant not to compete that prohibited defendant from practicing podiatry within a 20-mile radius of Wayland or Dansville for 2 1/2 years after the termination of the agreement. On August 31, 1992, plaintiff and another podiatrist, Dr. Barry Fitzgerald, entered into an asset purchase agreement whereby plaintiff sold his practice and assets to Dr. Fitzgerald. The agreement provided that the purchase price would be 33% of the fees generated by Dr. Fitzgerald in the three years immediately after the deal closed, less $3,600. Plaintiff was given the right to treat patients referred to him by Dr. Fitzgerald and the revenue generated from those patients would not be included in determining the purchase price.
By letter dated August 31, 1992, plaintiff's attorney informed defendant of the sale and that defendant was to vacate the office by September 30, 1992. Shortly thereafter, defendant opened an office in Dansville close to plaintiff's office.
Thereafter, plaintiff commenced this action, seeking to enforce the covenant not to compete and to obtain damages for its breach. On May 18, 1994, defendant moved for summary judgment dismissing the causes of action based upon the alleged breach of the covenant not to compete and plaintiff's claim for punitive damages. Supreme Court dismissed plaintiff's claim for punitive damages but denied defendant's motion for summary judgment in all other respects. Defendant appeals from so much of the order of the court as denied his motion for summary judgment dismissing the causes of action based upon defendant's alleged breach of the covenant not to compete. We affirm.
We reject the contention of defendant that plaintiff lacks standing to sue upon the covenant not to compete. (Community Bd. 7 of Borough of Manhattan v. Schaffer, 84 N.Y.2d 148, 154-155, 615 N.Y.S.2d 644, 639 N.E.2d 1). Plaintiff has such a "cognizable stake in the outcome." His property rights are directly affected by defendant's practice.
The benefit of plaintiff's bargain under the covenant not to compete is the economic advantage plaintiff receives by keeping competitors, including defendant, from practicing in the Dansville area. Defendant's practice of podiatry in breach of the agreement directly affects plaintiff's financial interest because, under the terms of the contract between plaintiff and Dr. Fitzgerald, plaintiff's practice is valued at the end of three years. Thus, defendant's practice in the Dansville area will have an adverse economic impact upon the value plaintiff ultimately receives for the business. Further, plaintiff has the right under the terms of the asset purchase agreement to treat patients and to continue to earn fees for such treatment. Contrary to defendant's contention, it is of no moment that the patients...
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