SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2261-20

PRAJAKTA V. AVHAD, M.D.,

and INTERVENTIONAL PAIN 

AND SPINE INSTITUTE, INC.,

Plaintiff-Respondent,

v.

DR. WAEL ELKHOLY, and 

PRECISION PAIN AND 

SPINE INSTITUTE, LLC,

Defendants-Appellants.

___________________________

Argued March 3, 2022 – Decided March 14, 2022

Before Judges Alvarez and Haas.

On appeal from the Superior Court of New Jersey, Law 

Division, Mercer County, Docket No. L-0205-21.

Steven I. Adler argued the cause for appellants 

(Mandelbaum Salsburg, PC, attorneys; Steven I. Adler, 

on the briefs).

Evan L. Goldman argued the cause for respondent 

(Goldman Davis Krumholz & Dillon, PC, attorneys; 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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Evan L. Goldman, of counsel and on the brief; Kelly A. 

Smith, on the brief).

PER CURIAM

Defendants Dr. Wael Elkholy and Precision Pain and Spine Institute, LLC

appeal from the Law Division's March 2, 2021 order declaring there was no 

restrictive covenant in any independent contractor agreement they allegedly had 

with plaintiffs Prajakta V. Avhad, M.D. and Interventional Pain and Spine 

Institute, Inc., that prevented Avhad and her company from working within a 

ten-mile radius of Elkholy's practice locations. After carefully reviewing the 

record, we conclude the trial court erred by conducting this matter as a summary 

proceeding under Rule 4:67-1(a) and thereby failing to develop the meager 

record and properly address the many material disputes of fact between the 

parties. Therefore, we vacate the March 2, 2021 order and remand for further 

proceedings.

Elkholy operates Precision Pain and Spine Institute, LLC, a pain 

management medical practice with locations in Hamilton and Edison. Avhad 

previously worked for Elkholy and another one of his companies as an 

employee. In her complaint, Avhad asserts that she and her company, 

Interventional Pain and Spine Institute, Inc., signed an independent contractor 

agreement to work with Elkholy. Avhad attached a copy of the contract to her 
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complaint, but the contract is not signed or dated. The contract states it 

commenced on October 6, 2016.

Under the contract, Avhad agreed to provide medical services to patients 

at Elkholy's two facilities. Paragraph 9 of the agreement stated it could "not be 

modified in any manner except by an instrument in writing executed by the 

parties." Paragraph 7(B)(iii)(a) stated that Avhad and her company "shall not 

engage in . . . the practice of medicine/osteopathy . . . either on [their] own 

behalf or on behalf of any person, firm, corporation[,] or any other entity within 

a ten (10) mile radius of either [p]ractice [l]ocation."

Elkholy later opened a third practice location in North Brunswick and 

Avhad began working there. She also continued to see patients at the Hamilton 

and Edison facilities. The parties did not amend their written agreement to 

include the North Brunswick location in the restrictive covenant clause. 

However, Elkholy alleged he and Avhad entered into a new oral agreement 

whereby she agreed not to work for any other entity within a ten-mile radius of 

North Brunswick.

According to Avhad's complaint, she decided to end her business 

relationship with Elkholy in late 2020. She asked Elkholy to give her a letter 
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stating she could work for another medical practice located within ten miles of 

Elkholy's North Brunswick location. He refused.

In late January 2021, plaintiffs filed an unverified complaint against 

defendants. They did not file a motion requesting the trial court to conduct the 

matter as a summary proceeding under Rule 4:67-1(a). Avhad also did not 

submit a certification in support of her application. 

Nevertheless, the trial court entered an order to show cause on January 28, 

2021. The order stated that Avhad was "seeking a preliminary injunction" but 

it did not specify the relief she sought. The order directed defendants to show 

cause "why orders should not be issued declaring that North Brunswick is not 

part of the noncompete clause."

In response, Elkholy submitted a certification. As noted, Elkholy asserted 

the parties had entered into a new oral agreement to address the North Brunswick 

location. Elkholy also provided several text messages in which Avhad appeared 

to acknowledge the restrictive covenant barred her from working within ten 

miles of North Brunswick.

After conducting oral argument on the February 22, 2021 return date, the 

trial court entered an order concluding "that there is no [r]estrictive [c]ovenant 

in any alleged [c]ontract between the [p]arties that covers the North Brunswick 
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[l]ocation of the defendant[s] and therefore, no restrictive covenant can be 

enforced from that location." In a brief oral decision, the court found there was 

"no agreement that is before [the court] to enforce that's signed." Because the 

written agreement stated it could only be modified in writing, the court stated 

that any oral agreement was ineffective because it purported to modify the 

parties' written agreement to add a third location to the restrictive covenant. 

Thus, the court granted plaintiffs the permanent relief they sought in their 

complaint.

On appeal, defendants contend the trial court erred by conducting this 

matter in a summary fashion. They assert there were material disputes of fact 

that could not be resolved on this sparse record, especially since Avhad did not 

even submit a certification in support of her application. We agree with these 

contentions.

As we explained in Waste Management of New Jersey, Inc. v. Union 

County Utilities Authority, 399 N.J. Super. 508, 516 (App. Div. 2008), "[t]he 

process adopted in our court rules for seeking injunctive relief applications . . . 

does not allow for the entry of an order to show cause for the entry of a 

permanent injunction; rather, it permits only the entry of an order requiring a 

party to show cause why a temporary restraint or an interlocutory injunction 
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should not issue." Ibid. (emphasis in original) (citing R. 4:52-1 and -2; Solondz 

v. Kornmehl, 317 N.J. Super. 16, 20-21 (App. Div. 1998)). Here, plaintiffs 

stated in their order to show cause that they were seeking a preliminary 

injunction, but they did not identify the specific relief they sought. Their 

complaint was not verified, and they did not submit a certification or a brief in 

support of their application. See R. 4:52-1.

Although Rule 4:67-1(a) permits "the entry of an order at the 

commencement of the action that requires a defendant to show cause why final 

judgment should not be entered[,]" Waste Mgmt., 399 N.J. Super. at 516 n.2, 

proceeding under this Rule is allowed only when a rule or statute authorizes the 

court to resolve the matter summarily. Ibid. Here, there was no applicable rule 

or statute that permitted plaintiffs to proceed summarily.

Further, the trial court improperly entered what it stated in its decision 

was "a final order"1 because neither the order to show cause nor the resulting 

proceedings suggested that defendants consented to a summary disposition of 

the dispute. As the Waste Management court explained:

We are mindful that in practice it is not unheard of for 

parties to consent to a final determination on the return 

of an order to show cause for an interlocutory 

1

 Although the trial court granted plaintiffs all the relief they sought in their 

complaint, the court did not label its March 2, 2021 order as a final judgment.
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injunction when the facts are not in dispute or when an 

evidentiary hearing would add no illumination to the 

court's resolution of the issues presented. It is also not 

uncommon, when a plenary hearing is conducted for the 

purposes of resolving factual disputes on an 

interlocutory injunction application, for the parties to 

consent to have the trial judge render a final judgment. 

Such a sensible and practical approach often provides 

the parties with a swift and efficient resolution of their 

disputes that is not inconsistent with our rules of 

procedure, which favor "just determination[s], 

simplicity in procedure, fairness in administration and 

the elimination of unjustifiable expense and delay." R.

1:1-2 (citations omitted). Accordingly, we do not 

intend to preclude pragmatism in the resolution of 

disputes, but we must insist that such an approach is 

only appropriate when the parties understand and 

consent to a summary disposition of their disputes. 

Otherwise, the process would possess only the qualities 

of simplicity and efficiency, not fairness or justice.

[Waste Mgmt., 399 N.J. Super. at 518 (emphasis added)

(citations omitted).]

Defendants plainly did not consent to have the matter resolved through a 

summary proceeding. They also disputed almost all of the few facts alleged by 

plaintiffs. In addition, Avhad did not address any of defendants' factual claims, 

which included their assertion the parties entered a separate oral agreement 

concerning the North Brunswick location and their claim that Avhad 

acknowledged being bound to the restrictive covenant in the text messages she 

sent to Elkholy. Yet, the trial court did not require the parties to present 
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testimony on any of the issues involved in this case. Therefore, the court should 

not have attempted to resolve these factual disputes in a summary fashion.

Under these circumstances, we are satisfied the trial court erred by 

granting plaintiffs the permanent relief they sought on the return date of the 

order to show cause under the truncated, summary procedure it employed in this 

highly contested matter. Therefore, we vacate the March 2, 2021 order and 

remand for further proceedings.

Vacated and remanded. We do not retain jurisdiction.