Hapworth Medical Services v. Kress

Appellate Division of the Supreme Court of New York

Hapworth Medical Services v. Kress

218 A.D.2d 575, 630 N.Y.S.2d 322, 1995 N.Y. App. Div. LEXIS 8732

CourtAppellate Division of the Supreme Court of the State of New York

DecidedAugust 17, 1995

StatusPublished

Cited by2 cases

This text of 218 A.D.2d 575 (Hapworth Medical Services v. Kress) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hapworth Medical Services v. Kress, 218 A.D.2d 575, 630 N.Y.S.2d 322, 1995 N.Y. App. Div. LEXIS 8732 (N.Y. Ct. App. 1995).

Pincite

Opinion

—Order, Supreme Court, New York County (William Davis, J.), entered January 3, 1994, which denied the defendant’s motion for summary judgment dismissing the complaint, and granted plaintiffs cross motion for sanctions pursuant to 22 NYCRR part 130, to the extent of directing defendant’s attorney to pay $2,500 to plaintiffs attorney and $2,500 to the Lawyers’ Fund for Client Protection pursuant to State Finance Law § 97-t, unanimously modified, as a matter of discretion, to delete the provision imposing sanctions and costs pursuant to 22 NYCRR 130-1.1, and otherwise affirmed, without costs.

The IAS Court properly denied defendant’s second motion for summary judgment on the ground that it was not based on evidence that was unavailable to defendant at the time she made her first motion (Levitz v Robbins Music Corp., 17 AD2d 801; see also, Marine Midland Bank v Fisher, 85 AD2d 905, 906). In any event, on the merits, the enforceability of covenants restricting health care professionals from competing with a former employer or associate have been recognized (Gelder Med. Group v Webber, 41 NY2d 680, 683). Questions of fact are present, including those concerning the validity of the covenant in light of the ethical constraints on the plaintiffs principal and the defendant.

We disagree, however, with the trial court’s imposition of sanctions (22 NYCRR 130-1.1), because the defendant’s actions in bringing a motion for summary judgment against the complaint, after having brought a prior motion for summary judgment on a counterclaim, did not rise to the level of frivolous conduct such that sanctions were warranted (Marine Midland Bank v Vivlamore, 185 AD2d 506, 508).

We have considered and rejected defendant’s remaining claims. Concur—Sullivan, J. P., Rosenberger, Wallach, Ross and Mazzarelli, JJ.

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—Order, Supreme Court, New York County (William Davis, J.), entered January 3, 1994, which denied the defendant’s motion for summary judgment dismissing the complaint, and granted plaintiffs cross motion for sanctions pursuant to 22 NYCRR part 130, to the extent of directing defendant’s attorney to pay $2,500 to plaintiffs attorney and $2,500 to the Lawyers’ Fund for Client Protection pursuant to State Finance Law § 97-t, unanimously modified, as a matter of discretion, to delete the provision imposing sanctions and costs pursuant to 22 NYCRR 130-1.1, and otherwise affirmed, without costs.

The IAS Court properly denied defendant’s second motion for summary judgment on the ground that it was not based on evidence that was unavailable to defendant at the time she made her first motion (Levitz v Robbins Music Corp., 17 AD2d 801; see also, Marine Midland Bank v Fisher, 85 AD2d 905, 906). In any event, on the merits, the enforceability of covenants restricting health care professionals from competing with a former employer or associate have been recognized (Gelder Med. Group v Webber, 41 NY2d 680, 683). Questions of fact are present, including those concerning the validity of the covenant in light of the ethical constraints on the plaintiffs principal and the defendant.

We disagree, however, with the trial court’s imposition of sanctions (22 NYCRR 130-1.1), because the defendant’s actions in bringing a motion for summary judgment against the complaint, after having brought a prior motion for summary judgment on a counterclaim, did not rise to the level of frivolous conduct such that sanctions were warranted (Marine Midland Bank v Vivlamore, 185 AD2d 506, 508).

We have considered and rejected defendant’s remaining claims. Concur—Sullivan, J. P., Rosenberger, Wallach, Ross and Mazzarelli, JJ.

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Bluebook (online)

218 A.D.2d 575, 630 N.Y.S.2d 322, 1995 N.Y. App. Div. LEXIS 8732, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hapworth-medical-services-v-kress-nyappdiv-1995.

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