Dismissal of Non-Compete Overturned by Appellate Division

In an unpublished decision released last week, the Appellate Division overturned a trial court's judgment finding that there was no basis to enforce a ten-mile non-compete clause in an independent contractor agreement entered into between two medical professionals.  The trial court ruled that the non-compete was unenforceable on the bases that the agreement was unsigned and also that a third location was added after the agreement was entered which the parties failed to address in writing as to whether or not it modified the non-compete clause.  While the trial court believed that the record before it was sufficient to find that there was no enforceable non-compete, the Appellate Division disagreed and held, at least at that early juncture in the case, the making of a final ruling was premature.  Specifically, the court should have permitted the parties to first develop a record in order to consider evidence regarding the Defendants' assertions that the parties entered into a separate oral agreement when the third location was opened, and that the parties agreed to include the new location within the restrictive covenant radius by way of text message conversations.  Accordingly, the Appellate Division vacated the judgment and returned the matter to the trial court for further proceedings.  Avhad, M.D., et. al. v. Elkholy, M.D., et. al.