HAPWORTH MEDICAL SERVICES v. KRESS

The IAS Court properly denied defendant's second motion for summary judgment on the ground that it was not based on evidence that was unavailable to defendant at the time she made her first motion ( Levitz v. Robbins Music Corp., 17 A.D.2d 801; see also, Marine Midland Bank v. Fisher, 85 A.D.2d 905, 906). In any event, on the merits, the enforceability of covenants restricting health care professionals from competing with a former employer or associate have been recognized ( Gelder Med. Group v. Webber, 41 N.Y.2d 680, 683). Questions of fact are present, including those concerning the validity of the covenant in light of the ethical constraints on the plaintiff's principal and the defendant.

We disagree, however, with the trial court's imposition of sanctions ( 22 NYCRR 130-1.1), because the defendant's actions in bringing a motion for summary judgment against the complaint, after having brought a prior motion for summary judgment on a counterclaim, did not rise to the level of frivolous conduct such that sanctions were warranted ( Marine Midland Bank v. Vivlamore, 185 A.D.2d 506, 508).

We have considered and rejected defendant's remaining claims.

Concur — Sullivan, J.P., Rosenberger, Wallach, Ross and Mazzarelli, JJ.