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Northern Jersey Ear, Nose and Throat Associates, P.A. v. Surow

BER-C-173-08 (N.J. Super. Ch. Div. 2008) (Unpublished)

NON-COMPETITION; INJUNCTIONS — Absent other factors, where an employee can’t show that a restrictive agreement causes him or his patients or customers any undue hardship or that his patients and customers can’t travel beyond the restricted geographical area, an employer is entitled to injunctive relief under a non-competition agreement.

An ENT medical practice filed for preliminary restraints against a former employee based upon a non-competition agreement that provided that the former employee would not compete for a period of two years and not practice the employee’s medical speciality within a five mile radius of any medical facility or hospital used by the practice at that time, or at any hospital where the employee had maintained hospital privileges on the last day of the employee’s employment. The ENT medical practice had two offices. The former employee joined a practice within a five mile radius of one of the offices. He had left the ENT practice in order to take a more economically lucrative position.

The Court first pointed out that a preliminary injunction should not be issued except when necessary to prevent substantial, immediate, and irreparable harm. It noted that the employee, in this case, failed to put forth any proof of irreparable harm, and in fact had voluntarily left his former employer for a great salary at a competing practice which had offices located outside the banned five mile radius. The Court therefore concluded that the employee could not argue the restrictive agreement caused him or his patients any undue hardship and that his patients couldn’t travel beyond the five mile radius to consult with him. The Court additionally found that a two year restriction with a five mile radius was neither overbroad nor unreasonable. Accordingly, the Court found that the ENT medical practice met its burden and was entitled to injunctive relief under the noncompetition agreement.


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