Opinion
2002/06929.
Decided September 25, 2006.
Nixon Peabody LLP (Robert B. Calihan, Esq., of counsel), Rochester, NY, Counsel for Plaintiff.
Chamberlain, D'Amanda, Oppenheimer Greenfield, LLP (Michael T. Harren, Esq., of counsel), Rochester, NY, Counsel for Defendant.
This is a motion to reargue, which is granted. I agree that the releases relied on in the original decision are not determinative of the continued viability of the restrictive covenants plaintiff seeks to enforce in this action. On reargument, however, the original decision to grant summary judgment to defendant is adhered to. Plaintiffs' arguments, drawn from what portion of the agreements they have disclosed during discovery and on these motions, that Viola's employment agreement with Urban Oncology was assigned via a series of asset acquisitions, seriously mischaracterizes the agreements in question, ignores the reality of administrative service agreements vis-a-vis physician practices served by entities such as Equimed and PRG, and otherwise is without merit. A detailed analysis is required.
For the reasons stated in the original decision, it remains assumed for purposes of these motions that an assignment of restrictive covenants is permissible. As stated there:
A critical issue in this case concerns whether defendant's employment agreement survived the alleged successive sales of Urban Oncology to other companies which were not signatories to the original employment agreement. Although the Court of Appeals has never said so, and authorities out of state are in conflict, Safelite Glass Corp. v. Fuller, 15 Kan. App.2d 351, 807 P.2d 677(1991) (collecting cases); 6 Williston on Contracts § 13:13 (4th ed.) ("authorities are also in conflict with respect to the important issue of whether an employee's restrictive covenant may be enforced against him by an assignee of or other successor in interest to his employer's rights"), an agreement containing a non-competition provision has been held in this state to be assignable. Eisner Computer Solutions, LLC v. Gluickstern, 293 AD2d 289 (1st Dept. 2002); Specialty Products Mfg., Inc. v. Douglass, 159 AD2d 847, 849 (3rd Dept. 1990); Abalene Pest Control Service v. Powell, 8 AD2d 734, 735 (1959). Additionally, "an express assignment to a subsequent purchaser of the covenant not to compete is unnecessary. A subsequent sale of the business will pass the covenant as an incident of the goodwill of the business even through it is not expressly assigned." 6A NY Jur.2d Assignments § 14 (March 2006 Update). In the present case, there is an express provision of the original agreement which states that it is assignable by plaintiff regardless of defendant's wishes [§ 7.5].
Viola's 1996 employment agreement containing the restrictive covenants, the subject of the assignments claimed by plaintiff, was with Urban Oncology Services, P.C., d/b/a "Eye Care of Genesee Valley," and provided for his employment as a staff physician specializing in cornea, general and surgical ophthalmology. According to Viola, Aquavella and Urban Oncology had in 1995 entered into a Service Agreement with EquiVision, Inc., which was not a party to Viola's employment contract with Urban Oncology. The EquiVision Service Agreement was not produced during discovery by plaintiffs, but if it was anything like the PRG Service Agreement in the record, it would for the reasons explained below fully support defendant's position and conclusively refute plaintiffs' claimed assignments.
Only three months after Viola executed his employment agreement, a subsidiary of PRG purchased some of the assets (demoninated "the Division") of a company named EquiMed, Inc. In his affidavit, Viola complains of plaintiffs' failure to disclose "the connection, if any, between EquiVision, Inc. and Equimed, Inc.," and of missing exhibit pages of the PRG Asset Purchase Agreement, and in particular "Exhibit 3.1 identifying subsidiaries of Equimed, Inc." But this gap in proof is not determinative, especially because Exhibit 3.11 of the Asset Purchase Agreement (listing each party's trade names, fictitious or assumed names) lists, on page 32, "EquiVison, Inc." as a predecessor company of Equimed, and Equimed is elsewhere referred to as "Equimed, Inc. f/k/a/ EquiVision, Inc."
Notably absent from the record on these cross-motions, however, is any evidence that Urban Oncology ever was acquired by either corporation or, indeed, any entity, including the "practice" and "provider" which were parties to the PRG Service Agreement. Viola presents documentary proof that Urban Oncology was renamed shortly after the PRG acquisition, presumably remaining an ongoing practice, and that it was not dissolved until 2001, well after the assignment by acquisition claimed by plaintiffs, and well before defendant left plaintiffs' practice and began competing. Moreover, Exhibit 3.11 lists a number of entities associated with trade names used by the practice providers served by Equimed in connection with the "Rochester, NY — Aquavella-Robbins" practice (also at p. 32), but neither Urban Oncology nor "Eye Care of Genesee Valley" is among them. Thus, plaintiffs claim an assignment of Viola's Urban Oncology employment contract by virtue of an asset acquisition, but wholly fail to show that Urban Oncology was ever sold to or acquired by anyone, and certainly not by Equimed which was acquired in part by PRG, or any of the practices served by Equimed listed on Exh. 3.11, p. 32. The only proof of a relationship between Urban Oncology and Equimed's predecessor-in-interest, EquiVision, is the 1995 Service Agreement referred to in Viola's affidavit (plaintiff does not dispute its existence) which antedated the relevant employment contract by a year. There is a reference in the PRG Asset Purchase Agreement (Exhibit 3.12 at p. 36) to an employment contract with either the seller, i.e., Equimed, or more certainly the "Practice," i.e., the Aquavella-Robbins P.C. referenced in the contemporaneous PRG Service Agreement, but neither party has on this motion alleged that Viola executed an employment contract with either corporation, or any of the entities listed on Exhibit 3.11. Furthermore, the listing on Exhibit 3.12 is to "Oral or Written" employment contracts, without further specification.
There is in Exhibit 3.33(a), entitled "Affiliated Practices," a listing of Urban Oncology Services, P.C. in Rochester, New York. Section 3.33 of the Asset Purchase Agreement, however, refers to the listing as including "each entity" with which Equimed "has entered into a Management Services Agreement . . . requiring [Equimed] to provide ophthamological medical practice management or similar services." Thus, Urban Oncology, as a listed "affiliate practice," is represented not to have been sold to or acquired by either EquiVision or Equimed, nor does either party on this motion claim and prove that it was part of any "Additional Acquisition consummated by the seller on or before the closing date" of the PRG asset purchase within the meaning of section 3.33. If any such claim was made by plaintiffs (they make isolated references in their briefs to Urban Oncology's status as an affiliated practice without further effort to show what that means), they would be in error when their counsel stated at oral argument, both on the original motion and on this motion for reargument, that the missing pages of the PRG Asset Purchase Agreement could have no bearing on the merits of either the plaintiffs' or the defendant's position. That agreement provides, "additional acquisitions' shall mean those acquisitions listed on Exhibit 1(h) attached hereto, . . ." Yet Exhibit 1(h) is among the missing pages of the PRG Asset Purchase Agreement.
Plaintiffs reference section 9.1 of the Asset Purchase Agreement and assert that it "states each contract held by Equimed would be assigned to PRG at closing." Reply Memo at 5. But § 9.1(c) only refers to "an assignment of each contract, agreement and lease being assigned to and assumed by purchaser" (emphasis supplied) without identification of those that, in fact, would be assigned and assumed. In any event, even if the 1995 Service Agreement Urban Oncology had with EquiVision/Equimed was one of those targeted by the Asset Purchase Agreement for assignment fo PRG, that naked fact alone would not accomplish an assignment of the subsequently executed 1996 Urban Oncology/Viola Employment Agreement unless the undisclosed Service Agreement had provisions in it giving EquiVision rights to subsequently issued employment agreements, an unlikely possibility given the nature of the administrative service relationship in question ( see below). If Urban Oncology was to be acquired by PRG by the terms of the Asset Purchase Agreement, there would be no need to refer to Urban Oncology in Section 3.33 as an affiliate practice for which Equimed provided management services. Thus, the separation of Urban Oncology from Equimed was intended to remain unless Urban Oncology became subject to an "additional acquisition," the details of which plaintiff failed to provide discovery of or prove on these motions.
That leaves for consideration whether the listing of "Eye Care of Genesee Valley, 919 Westfall Road, Rochester, NY 14618" in Exhibit 2.1(a)(i) as a "Location of Assets Being Sold" provides evidence of an assignment of the 1996 employment contract. It is clear that section 2.1, which enumerates the various "assets" being transferred to PRG, refers to "[a]ll of the real property, personal property, plant, furniture, fixtures, equipment and goodwill" and "inventories" of Equimed "used in The Business in which Seller has any Right or Interest that are situated in the locations set forth in Exhibit 2.1(a)(i)," § 2.1(a)(b) (emphasis supplied), and "all rights under contracts . . . related to . . . [Equimed] including . . . contracts identified on Exhibit 3.14 attached hereto." Id. § 2.1(c). Exhibit 3.14 includes "Practice Service Agreements," which is defined to include "any management services agreement . . . entered into between seller [Equimed] . . . and any practice . . . [presumably Urban Oncology]." § 1(at). But acquiring the 1995 EquiVision/Equimed service agreement with Urban Oncology is not the same as acquiring the rights to Viola's employment contract with Urban Oncology unless the Service Agreement itself provides that EquiVision/Equimed stands in the shoes of, or otherwise is given the rights benefitting, Urban Oncology with respect to the latter's employment contracts, whenever executed. Yet plaintiff fails to show this unlikely ( see below) provision because it failed to disclose the 1995 service agreement during discovery.
Exhibit 3.14 also references "commitments evidenced in Exhibits . . . 3.12," which lists employment contracts "of Seller [Equimed] and the Seller Subs," which is defined in § 3.1 as including only those "entities (the Seller Subs') disclosed in Exhibit 3.1," another of the arguably pertinent portions of the PRG Asset Purchase Agreement not disclosed by plaintiffs during discovery. Thus, the Viola employment contract referenced in Exhibit 3.12 is represented to be with one of Equimed's practice or providers, as set forth in the PRG Service Agreement, i.e., Aquavella-Robbins, P.C., or Aquavella himself, not with another of Equimed's affiliate practices such as Urban Oncology, and the reference to Eye Care of Genesee Valley in Exhibit 2.1(a)(i) is only to the location of assets being sold, not to the particular assets sold, which are instead enumerated in § 2.1 of the Agreement (and Exhibits 3.12 and 3.14) but which does not specifically refer to Viola's employment contract with Urban Oncology, its successors or assigns. Exhibit 3.12 only refers to an employment contract with Equimed or the entities listed in Exh. 3.11, p. 32 (oral or written), and neither Equimed nor any of those entities have been shown to have succeeded to the interests of Urban Oncology. The only manner of assignment claimed by plaintiffs in their complaint and moving papers is from Urban Oncology to Equimed, in turn to and through PRG, to plaintiffs.
In fact, Viola shows that the successor-in-interest to Urban Oncology was not Equimed, PRG, or the Practice or Provider identified in the PRG Service Agreement, but rather "Clear Sight Medical Practice of Rochester P.C.," by virtue of a certificate of amendment executed two months after, and filed with the state education department fully a year after, the PRG acquisition of Equimed, and that Clear Sight was dissolved on March 28, 2001, nearly a year before defendant departed plaintiffs' practice. This documentary proof establishes that Urban Oncology, Inc., d/b/a "Eye Care of Genesee Valley" was never acquired by Equimed or PRG, or any of the affiliated practices served by either corporation. No other instrument of assignment of the 1996 Viola/Urban Oncology employment contract has been adduced. Plaintiffs do not on this motion contend that the 1995 Service Agreement by its terms or by custom in the industry gave EquiVision (and later Equimed) rights under Viola's 1996 employment agreement, so those arguments, not made on the original motions or this motion to reargue, are now foreclosed to them even if viable. They contend only that Equimed and PRG succeeded to the interests of Urban Oncology, an argument conclusively refuted by the terms of the agreements (or parts thereof) provided to the court on these motions.
I would be surprised if discovery of the 1995 EquiVision Service Agreement would aid plaintiffs. The PRG Service Agreement, for example in sections 4.1, 4.4, and esp. 6.8 and 6.9, expressly negates the proposition that PRG owns rights to the Practice's physician restrictive covenants, except in the event the Practice refuses to enforce them, in which event an assignment is called for (§ 6.9). We obviously do not have that situation here, and the fact that a contingency assignment is provided for shows that no prior assignment occurred. As the PRG Service Agreement illuminates, plaintiffs' arguments seriously mischaracterize the nature of administrative service agreements in the physician practice context.
Accordingly, this case stands much like the case of Gismondi, Paglia, Sherling, M.D., P.C. v. Franco, 206 F. Supp.2d 597, 600 (S.D.NY 2002) in which successor-in-interest status in favor of plaintiff was not established and in which the contractual party to which defendant's restrictive covenant ran in favor still carried on business, albeit not one which entitled it to enforce the restrictive covenant. In short, Franco stands for the proposition that plaintiffs cannot enforce defendant's employment agreement with Urban Oncology as the latter's successor-in-interest. In other words, plaintiffs fail to show that the Urban Oncology/Viola employment agreement was ever assigned to anyone, whether by asset acquisition or otherwise. Plaintiff's motion must perforce be denied for failure of proof. Inasmuch as defendant provides documentary proof that Urban Oncology continued to exist through 2001, and that it had only a Service Agreement with EquiVision/Equimed, and that it had not been acquired by either entity prior to the PRG acquisition, as confirmed by Section 3.33 of the agreement, defendant establishes entitlement to judgment as a matter of law.
In response, plaintiffs contend principally that defendant has admitted in various contexts that he was bound by the Urban Oncology contract, but at bottom plaintiff does not raise an issue of fact. Plaintiffs' contention that the 1999 documents prepared by defendant's "learned" counsel, including a letter of intent and a draft Asset Purchase Agreement in connection with the parties' negotiations concerning Viola's proposed purchase of the practice, is admissible in a case of clearly unambiguous agreements showing that no assignment occurred, is without merit for the reasons stated by Judge Learned Hand in the famous decision of Eustis Mining Co. v. Bear, Soundheimer Co., Inc., 239 F. 976 (S.D.NY 1917):
This result the defendant resists, because of evidence dehors the writings. The evidence is of three sorts: First, the admission or declaration arising from the Proposed Combination Agreement of April 8, 1915; second, the contemporaneous negotiations of the parties; third, the general setting in which the contracts were drafted. The first consists of a proposed contract, proffered by the plaintiff, which it is alleged the accompanying correspondence shows to have been intended to subsume the existing contracts. The defendant's theory is that it may be used as an interpretation of those contracts, certainly to the extent of proving how much of the earlier contract survived, because it is an admission by the plaintiff of what it thought those contracts, taken together, effected. The defendant does not, of course, suppose that the Proposed Combination could affect any actual obligations of the parties, since it was never accepted; but it asserts that it shows which of the earlier stipulations must have been intended to endure. As articles 5 and 6 are incorporated in the Proposed Combination, with some important modifications, not necessary to consider, the defendant insists that the plaintiff has admitted that they were meant to continue.
This evidence is, I think, irrelevant to the issues, for a reason going to the very nature of a contractual obligation. It is quite true that we commonly speak of a contract as a question of intent, and for most purposes it is a convenient paraphrase, accurate enough, but, strictly speaking, untrue. It makes not the least difference whether a promisor actually intends that meaning which the law will impose upon his words. The whole House of Bishops might satisfy us that he had intended something else, and it would make not a particle of difference in his obligation. That obligation the law attaches to his act of using certain words, provided, of course, the actor be under no disability. The scope of those words will, in the absence of some convention to the contrary, be settled, it is true, by what the law supposes men would generally mean when they used them; but the promisor's conformity to type is not a factor in his obligation. Hence it follows that no declaration of the promisor as to his meaning when he used the words is of the slightest relevancy, however formally * 985 competent it may be as an admission. Indeed, if both parties severally declared that their meaning had been other than the natural meaning, and each declaration was similar, it would be irrelevant, saving some mutual agreement between them to that effect. When the court came to assign the meaning to their words, it would disregard such declarations, because they related only to their state of mind when the contract was made, and that has nothing to do with their obligations. This is, of course, a wholly different question from a preceding or subsequent agreement assigning an agreed meaning to any given words used in another contract. Marriner v. Luting, Fed. Cas. No. 9,104.
Id. 239 F. at 984-85 (emphasis supplied). This statement of the rule has been described as "the staunchest objectivist stance," Bach v. Computer Associates International, Inc., 257 F.3d 700, 708 (7th Cir. 2001), but it unquestionably states applicable law in New York. See Duttweiler v. Jacobs, 223 App. Div. 292, 295 (1st Dept. 1928). Our Court of Appeals has consistently followed the objective, or formalist, approach to contract interpretation. South Rose Associates, LLC v. International Business Machines Corp., 4 NY3d 272, 277-78 (2005); Vermont Teddy Bear Co., Inc. v. 538 Madison Realty Co., 1 NY3d 470, 475 (2004); W.W.W. Associates, Inc. v. Giancontieri, 77 NY2d 157, 162-63 (1990); and especially Joseph Martin, Jr., Delicatessen, Inc. v. Shumacher, 52 NY2d 105, 109 (1981), the latter of which recently was described as "a clear statement of the formalist philosophy." Harold Dubroff, The Implied Covenant of Good Faith in Contract Interpretation and Gap-filling: Reviling a Revered Relic, 80 St. Johns L. Rev. 559, 577 (2006). Accordingly, and as stated in the court's original decision, evidence of the parties' negotiations toward an asset purchase in 1999, like the evidence of negotiations in Eustis Mining, is not admissible so long as the court finds that the contractual provisions in question are unambiguous. The same, of course, would apply to defendant's admissions during his depositions. Defendant's misconceptions of the relevant contracts cannot create an asset acquisition or assignment that the contracts themselves conclusively show did not occur.
The PRG firing episode, which would present questions of fact concerning its intended scope, need not be considered. Defendant contends that it applied to him as an employee of PRG and that, thereafter, his employment contract was replaced by an oral contract of at will employment without a restrictive covenant. This interpretation of the events, inconsistent with the aforementioned terms of the PRG Service Agreement providing for separation of the Practice's employment relationships from PRG's administrative service relationship with the Practice and Provider, is sharply disputed by plaintiffs by reference to the deposition admissions and the 1999 negotiation for Viola's purchase of the practice. On the question of fact presented by the PRG firing episode, the described evidence might well be admissible if the episode was relevant, but in any event neither party's showing establishes as a matter of law that Viola was, or was not, fired in the exchange.
Defendant's contention that he would be entitled to summary judgment notwithstanding the survival of the restrictive covenant in his employment agreement because the covenant is unreasonable, inasmuch as it has not been shown that he took patients other than his own when he left such that what competition he presented to Aquavalla PC was not unfair within the meaning of BDO Seidman, 83 NY2d at 391-93, need not be considered. In any event, whether Viola shows as a matter of law that the restriction in his employment agreement is unreasonable as a matter of law notwithstanding Gelder Medical Group v. Weber, 41 NY2d 680, 683 (1977); and Karpinski v. Ingrasci, 28 NY2d 45, 49 (1971), because of the intervening decision in BDO Seidman mandating strict scrutiny of the unfair competition issue, see Oak Orchard Community Health Center v. Blasco, 8 Misc 3d 927, 931 (Sup.Ct. Monroe Co. 2005) ("even though an agreement is reasonable as to time and area, as assuredly this one is, there is no per se rule of reasonableness arising just because it is a physician's unique or extraordinary services that is involved; a court must still scrutinize whether the covenant, on the facts presented, is being legitimately employed to protect plaintiff's legitimate interests, would not be harmful to the public, and would not be unduly burdensome to the defendant"), need not be considered given that there was no extant restrictive covenant when Viola left in 2002. Suffice to say here, though, that the landscape for physician restrictive covenants has changed. Id. (citing BDO Seidman, 93 NY2d at 391 (the Karpinski and Gelder Medical Group "precedents do not obviate the need for independent scrutiny of the anti-competitive provisions of the . . . [professional employment] agreement under the tripartite common-law standard")).
Turning to plaintiffs' misappropriation claim, plaintiffs do not ask for summary judgment. Plaintiffs' Original Memorandum, at p. 2 n. 2; Plaintiffs' Memo in Opposition (only requesting denial of defendant's motion for summary judgment). Defendant, however, moves for summary judgment dismissing the misappropriation claims. In support thereof, defendant submitted an affidavit in which he denies taking any patient list, medical record, business record or other trade secret; denies breaching any confidential or fiduciary relationships; maintains his announcement letters were sent out using his recollection of patient names, phone book, Daily Record, newspaper, and family member sources; asserts that plaintiff routinely sent Lasik surgery patients to him for their one year free follow up care; and denies that he solicited any of plaintiff's employees that were not themselves "separated" from the P.C. "as a result of his [Aquavella's] full time appointment with the University of Rochester, effective February 1, 2002." Important on this respect is Viola's testimony that, when Aquavella notified the office that he would be retiring from the practice of medicine and taking a teaching position at Strong, he also told Viola and other employees that he would be closing the practice.
Aquavella submitted no affidavit in response to defendant's motion, but instead relied on his affidavit supporting plaintiffs' motion for summary judgment on the breach of restrictive covenant claims, and on other record references, to show that the practice was kept open and that Viola indeed misappropriated confidential information. Plaintiffs' reference to Viola's deposition testimony on this point is somewhat curious. On page 44-45, Viola testified that, indeed, Aquavella did keep the practice open, but that, in doing so, he acted "contrary to what he said" about closing the practice and that he did so despite firing staff, and after other staff left in reliance on his statements that the practice would be closed, and further, after the volume of patients "dropped significantly." Viola Tr. at 44-45. Viola also testified that he decided not to buy the practice in part because it was saddled with substantial debt, and because Aquavella told him in January that "he was leaving" as of February 1st, that he would "no longer . . . serve patients at the Westfall office, he was no longer going to be responsible for any expenses or anything at the Westfall office, no longer pay rent, no longer be responsible for payroll or any of the payables[,] [a]nd he was just moving to Strong totally." Viola, at 14, 18.
On the question of misappropriation, plaintiffs' proof is wholly wanting. Aquavella's affidavit says nothing about misappropriation except in the most conclusory fashion, and plaintiffs' briefs on the cross-motions are cryptic at best. In particular, plaintiffs contend that defendant's own deposition testimony concerning a solicitation letter sent to a deceased patient shows that it could only have come from a confidential patient list owned by the Aquavella practice. Plaintiff only supposes that Viola would not have sent a solicitation letter to a deceased patient unless, instead of simply "remembering" the patient, he generated the solicitation letter from a pre-existing list of current and former patients of the P.C. But the patient in question was the parent of a long standing P.C. employee and plaintiffs do not explain why or how it was any more likely that Viola purloined the name from a confidential customer list than that he simply remembered the name from his prior treatment of the patient or working relationship with the daughter. Given Viola's detailed denial that he took a list from plaintiffs' computer or otherwise, Viola, 173-74, supported by the testimony of Deeley, Dunne, D'Aprile, and DeMarco, plaintiffs cannot glean from snippets of Viola's deposition testimony that, in fact, he did commit a misappropriation. The inferences sought to be drawn are wholly speculative, and require a stretch well beyond reason. Plaintiffs also refer to the deposition testimony of Rowland, who testified that patients who received solicitation letters from Viola came to the P.C. to protest because "they didn't even know who he was." Nothing by the way of testimony from these patients appears in the record, however, so this latter hearsay testimony is not admissible proof raising an issue of fact.
Finally, plaintiffs do not contend that the $20,000 in deferred compensation he is suing for was a discretionary bonus or was otherwise payable at the discretion of the employer, or indeed was anything other than earned wages or salary subject to "the long standing policy against the forfeitures of normal wages." Weiner v. Diebold Group, Inc., 173 AD2d 166, 167 (1st Dept. 1991). See De Marie v. Schoenborn, P.C. v. Loncar, 309 AD2d 1163, 1164 (4th Dept. 2003). Inasmuch as there is no question of fact but that Viola's deferred compensation was earned prior to any claimed breach of contract or misappropriation of confidential information, and plaintiff and his lawyer, Mr. Pineo, have admitted as much, a court may not order forfeiture by reason of any such breach, and plaintiffs would be entitled only to their damages, if any, occasioned thereby. In any event, with summary judgment dismissing plaintiffs' claims, the impediment to recovery identified by plaintiffs in their briefs does not exist. Defendant may have judgment for the $20,000+, etc. The other counterclaims are dismissed, as requested by plaintiffs.
CONCLUSION
The motion to reargue is granted, and upon reargument the original decision is adhered to in part and vacated in part. Plaintiff's motion for summary judgment is granted to the extent that the counterclaims asserted by defendant, other than the one for payment of the deferred compensation, are dismissed, and is denied insofar as it seeks a determination as a matter of law that the employment agreement was assigned by Urban Oncology. Defendant's motion for summary judgment is granted dismissing the complaint, as is his motion for judgment on the deferred compensation counterclaim.
SO ORDERED.