Lowe v. Reynolds , 75 A.D.2d 967 ( 1980 )

Appeal from an order of the Supreme Court at Special Term, entered January 9, 1980 in Ulster County, which granted plaintiffs motion for a preliminary injunction. Plaintiff, a proprietor of a private mental health center in Kingston, and defendant, a specialized speech and hearing pathologist, executed a written agreement providing for the terms of their professional relationship on June 1, 1978. Plaintiff was to provide defendant with an office and support services such as secretaries, billings and collections, supplies and equipment. The patients counseled by defendant were to be considered as patients of the Pine Street Counseling Center. All of defendant’s professional fees were payable to her. However, she agreed to pay the center $450 per month during the first year of the agreement and $500 per month for the second year thereof for the use of the premises and the services rendered by the center. Either party could terminate the agreement on three months’ written notice to the other. The agreement further provided that the parties would send a joint notice to defendant’s patients in the event of termination of the agreement, informing the patients of the future location of each party’s practice and stating that either party could be consulted in the future. However, the agreement also contained the following clause restricting defendant’s right to practice: "Ms. Reynolds agrees that upon termination of this Agreement she will not form or join any other group practice, or engage in the independent private practice of her specialties within a radius of forty (40) miles from the Center for a period of three (3) years after termination.” The parties had a dispute concerning obligations under the agreement and on June 27, 1979 plaintiff gave defendant the three-month written termination notice. Defendant subsequently sought to open a private practice as a certified speech pathologist and audiologist in the special education areas of mental retardation, neurological impairment and learning disabilities. Plaintiff then instituted this action for a permanent injunction in enforcement of the restrictive covenant and successfully obtained an order granting a preliminary injunction restraining defendant from opening such private office within the 40-mile limit. This appeal is from that order. Defendant urges that the order granting the injunction should be reversed on the grounds that plaintiff failed to demonstrate his clear right to such relief in that there are many questions of fact presented. We agree. Defendant makes a strong argument that enforcement of the restrictive covenant would lead to public harm. She states that the patients in this type of counseling are not readily transferable to another therapist and that doing so would probably cause confusion and damage to the patients. They need the personal relationship of counseling to continue, especially in view of the fact that many of them are young. Plaintiff offers no factual refutation of defendant’s statements on this point. Thus, a substantial question of potential harm to . the public exists. Plaintiff has, therefore, failed to prove his clear right to the ultimate relief sought and the preliminary injunction should have been denied (Camardo v Board of Educ., 50 AD2d 1073; City of Buffalo v Mangan, 49 AD2d 697; Smith v Robilotto, 25 AD2d 454). This same question of the patients’ welfare leads to the conclusion that the equities have not been shown to be in plaintiff’s favor, as is necessary before such relief should be granted (Picotte Realty v Gallery of Homes, 66 AD2d 978; Town of Porter v Chem-Trol Pollution Servs., 60 AD2d 987, 988). Moreover, plaintiff has also failed to demonstrate that irreparable harm will result absent the preliminary injunction. His affidavits refer to monetary loss and some indefinite loss of referral business from patients who have left the center, but this latter aspect is without real support. We do not consider the question of defendant’s certification to practice her profession since there is nothing in the record on such issue and it was not raised below (Kahn v City of New York, 37 AD2d 520, 521, affd 30 NY2d 690; Mulligan v Lackey, 33 AD2d 991, 992). We have considered the other arguments raised by the parties and find they are without merit. The order of Special Term should be reversed, the motion denied and the matter remitted for trial as a preferred case. Order reversed, on the law, motion denied, and matter remitted for trial as a preferred case, without costs. Main and Mikoll, JJ., concur; Casey, J., concurs in a separate memorandum in which Main, J., concurs; Mahoney, P. J., and Greenblott, J., dissent and vote to affirm in a memorandum by Greenblott, J.