Opinion
DOCKET NO. CA 17-01660
10-18-2017
CCS MEDICAL, PLLC, PLAINTIFF-RESPONDENT, v. HAIDER ALI KHADIM, M.D., AND HERBERT L. DUVIVIER, M.D., DEFENDANTS-APPELLANTS.
PRESENT:
Appellants having moved upon the return of an order to show cause granted by the Honorable Erin M. Peradotto on September 20, 2017, for an order staying or vacating a preliminary injunction issued by Supreme Court, Erie County, by order entered in the Office of the Clerk of the County of Erie on August 3, 2017, pending the hearing and determination of the appeal taken herein from the injunction order,
Now, upon reading and filing the affirmation of Melissa N. Subjeck, Esq., dated September 15, 2017, the affidavit of MaryJane Jentz sworn to July 29, 2017, the affidavit of Ronald Jentz sworn to July 27, 2017, the affidavit of Ted Jentz sworn to July 31, 2017, and the affidavit of Kelly Lux sworn to July 31, 2017, the notice of motion with proof of service thereof, and the affirmation of James D. Lantier, Esq., dated September 29, 2017, and due deliberation having been had thereon,
It is hereby ORDERED that pursuant to CPLR 5518, the motion is granted and that part of the preliminary injunction which enjoins defendant-appellant Haider Ali Khadim, M.D. from practicing medicine in the field of oncology within a 25-mile radius of any office of respondent, and which enjoins defendant-appellant Herbert L. Duvivier, M.D from practicing medicine in the field of oncology within a 20-mile radius of any office of respondent, is vacated and shall not be effective pending a hearing and determination of the appeal, and
It is further ORDERED that the motion is otherwise denied and that aspect of the preliminary injunction which enjoins appellants from soliciting or attempting to solicit any of respondent's patients with the intent or purpose to perform medical services remains in effect pending the appeal.
Entered: October 18, 2017
Mark W. Bennett, Clerk