SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER - - - - - - - - - - - - - - - - - - - - X BARRY L. DRUCKER, Index No. 52605/2017 Plaintiff, -against- ANKIT MEHTA, Defendant. - - - - - - - - - - - - - - - - - - - - X AFFIDAVIT IN SUPPORT OF MOTION FOR SUMMARY JUDGEMENT Compliance Part Motion Seq. No. 003 STATE OF NEW YORK ) COUNTY OF WESTCHESTER ) ) ss: BARRY L. DRUCKER, being duly sworn, deposes and says: 1. I am the plaintiff in the above-entitled action and make this affidavit in support of my motion for summary judgment. I am fully familiar with all of the facts and circumstances set forth herein. 2. The pleadings herein are attached hereto and made a part hereof as the following Exhibits: Exhibit A - Summons (#1)1 and Amended2 verified Complaint (#13) Exhibit B - Answer to Verified Answer to Amended Complaint (#16) 1 References "(#_)" "(I are the the Document Number on the NYSCEF system. 2 The Amended Verified Complaint and Answer to the Amended Verified are "Complaint" Complaint hereinafter referred to simply as the and "Answer". 1 of 7
3. This is an action for breach of contract, the terms of which provide, inter alia, for liquidated damages, and for an accounting. The contract is a letter agreement dated April 4, 2013, attached to the Complaint and is Exhibit "A" thereto (hereinafter referred to as the "Agreement"). 4. I am a licensed, board certified, ophthalmologist and have maintained a private practice in Queens County since 1976 and have acquired vast surgical and diagnostic experience in all aspects of the field, including refractive surgery, which I have performed since 1988. As a LASIK eye surgeon serving the Queens community, I have offered the most advanced and sophisticated LASIK methods including IntraLase bladeless LASIK and Wavefront LASIK. Other ophthalmic procedures and treatments performed at my practice include RK, PRK, cataract surgery, diabetic retinopathy treatment, and glaucoma treatment. 5. During my many years of practice, and given my vast experience, I have amassed a very substantial patient population. 6. In 2013, my practice, in which I was a sole practitioner, needed assistance from a part-time employee to help me handle my many patients. To fill this need I employed Mehta on a part-time basis. We entered into an employment agreement in which he agreed not to open an office within certain enumerated communities in Queens, which were defined in the Agreement by zip -2-2 of 7
code areas. He also agreed, at paragraph 9 of the Agreement, that he would "neither before termination nor within twenty-four (24) calendar months after termination... solicit, directly or indirectly, any patient (or member of any patient's immediate family) from the Practice's services... " 7. On October 21, 2016, I terminated Mehta's employment in writing. See Exhibit "B" to my complaint. 8. While Mehta was employed in my Practice he was called upon to render service to many of my patients. It is noteworthy that these were patients of my Practice. However, as he continued to work for me, Mehta also had the opportunity to develop new patients that he brought into the Practice. 9. The Agreement (Exhibit A to the Complaint) itself is undisputed, unambiguous, and speaks for itself. 10. The Agreement, at paragraph 8, not only provides for a restriction prohibiting the defendant from competing by proscribing him from practicing in certain parts of Queens (not all) which were designated by "zip code" during the term of the employment but also for 24 months after termination of employment. In the event of a breach the Agreement provides for liquidated damages in the sum of $150,000.00. (See paragraph 8 of Exhibit A to the Complaint.) -3-3 of 7
11. Mehta has admitted, both in his Verified Answer and deposition testimony, that in or around November 2015 he opened a separate office to practice ophthalmology, located at 164-05 Hillside Avenue, Jamaica, New York in the zip code "11432" which was specifically proscribed in the agreement. See defendant's Answer at paragraph 16. At his deposition on November 6, 2017, he testified that he started a practice at that location in November 2015 and he continues to the present the address in the proscribed zip code. See Transcript of Testimony dated November 6, 2017 at pages 49-54 and pages 82-83. Copies of the relevant pages are annexed hereto and made a part hereof as Exhibit "C". 12. From 2013 until October 21, 2016, when I sent him written notice of termination (Exhibit "B" to the Complaint) defendant continued to work at my office using my facilities and office space, treating patients, using my equipment and staff. During that period, he received compensation for the services he rendered. 13. Defendant was terminated in a letter dated October 21, 2016, a copy of which is Exhibit B to the Complaint. 14. Both during his employment and within the (less than) 24 months following his termination defendant maintained the office at 164-05 Hillside Avenue, Jamaica, New York in the zip 4 of 7
code "11432". He therefore owes me the liquidated damage amount of $150,000. There are no issues of fact. 15. Defendant was a part-time employee and practiced ophthalmology in the area at other offices and facilities on a part time basis. By practicing in my office he was exposed to my patients and gained the benefit of association with a well known and long established practice in the neighborhood. It was reasonable and logical that I would not bring defendant into my practice and also allow him to directly compete with me. We agreed upon a restrictive covenant that would not prohibit the defendant from practicing in the County of Queens entirely, but that would proscribe areas from which my patient base was drawn. 16. The restrictive covenant was carefully prepared to designate a limited number of areas, described by zip code. However, we agreed that the defendant would also be able to work "a hospital clinic setting which is not affiliated with a private practice in any way and not part of a health care system group practice" even if it were within the proscribed zip code areas. 17. The restrictive covenant is clear and unambiguous on its face. It is reasonable in its scope. It was the result of a bargained for and agreed upon geographic area. Defendant has not plead the defense that the geographic area was unreasonable or unenforceable. â 5-5 of 7
18. The liquidated damage sum of $150,000 is fair and reasonable and it was agreed (at paragraph 8 of the Agreement) that "such liquidated damages figure bears a reasonable relationship to the damages the Practice would incur upon such violation". Defendant has not plead the defense that the liquidated damages are unfair, do not have a rational basis, or are unenforceable. 19. There being no issues of fact or law in dispute, summary judgment should be granted on the First and Second Causes of Action in the sum of $150,000. 20. In the Third and Fourth Causes of Action, plaintiff seeks to recover monies which defendant diverted to his own account. The Third Cause of Action seeks an accounting of these funds. The Fourth Cause of Action states, on information and belief, that the sum due is $6,500. Defendant has not disputed that sum as due. 21. Accordingly, summary judgment should be granted. A trial is not required. WHEREFORE, plaintiff respectfully prays that the Court grant summary on the First and Second Causes of Action in the sum of $150,000 and on the Third and Fourth Cause of Action in the sum of $6,500, totaling in all a Judgment against defendant and in favor of plaintiff in the sum of $156,500 together with intertest -6-6 of 7
thereon as provided by law, or, in the alternative, pursuant to CPLR 3212(g) that the Court examine the papers before it and, in the discretion of the Court, interrogate counsel, to ascertain what facts are not in dispute or are incontrovertible; and upon such inquiry, to make an order specifying such facts and issuing an order that they shall be established for all purposes in the action; or to make any other order as may aid in the disposition of the action; and such other and further relief which to the Court seems just and proper, including the costs and disbursements hereof. / I B L. DRUCKER SWORN to before me this gv 5 ay of January, 2 018. gg HERBERT ADLER Notary Public, State of New York No. 02AD4623555 Qualified in Westchester County Commission Expires March 8, 20- -7-7 of 7