SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

78 

CA 12-00907 

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND VALENTINO, JJ. 

 

TIMOTHY FORD, PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

CARDIOVASCULAR SPECIALISTS, P.C., DOING 

BUSINESS AS NEW YORK HEART CENTER, 

DEFENDANT-APPELLANT. 

 

LAW OFFICE OF STEWART L. WEISMAN, MANLIUS (STEWART L. WEISMAN OF

COUNSEL), FOR DEFENDANT-APPELLANT. 

PAPPAS, COX, KIMPEL, DODD & LEVINE, P.C., SYRACUSE, D.J. & J.A.

CIRANDO, ESQS. (JOHN A. CIRANDO OF COUNSEL), FOR PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Onondaga County (John

C. Cherundolo, A.J.), entered December 12, 2011. The order denied

plaintiff’s motion for summary judgment to the extent that it sought

declaratory relief and granted the motion to the extent that it sought

dismissal of defendant’s counterclaim for liquidated damages. 

It is hereby ORDERED that said appeal from the order insofar as

it denied that part of plaintiff’s motion for declaratory relief is

unanimously dismissed and the order is affirmed without costs. 

Memorandum: Plaintiff physician commenced this action against

defendant, his former employer, seeking judgment declaring that the

noncompetition covenant in the parties’ employment agreement is no

longer in effect or is otherwise unenforceable against him. Defendant

asserted a counterclaim alleging breach of the employment agreement

and seeking liquidated damages. Plaintiff previously moved for a

preliminary injunction enjoining defendant from enforcing the

noncompetition covenant and, in a prior appeal, we concluded that

Supreme Court erred in granting the ultimate relief requested in the

complaint rather than ruling on that motion (Ford v Cardiovascular

Specialists, P.C., 71 AD3d 1429, 1430). Plaintiff thereafter moved

for summary judgment granting the declaratory relief sought in the

complaint and dismissing defendant’s “claim” for liquidated damages. 

The court denied the motion to the extent that it sought declaratory

relief and granted the motion to the extent that it sought dismissal

of the counterclaim for liquidated damages. 

At the outset, we note that defendant did not seek affirmative

relief in Supreme Court but simply opposed plaintiff’s motion. Thus,

defendant is not aggrieved by that part of the order denying
-2- 78 

CA 12-00907 

plaintiff’s motion to the extent that it sought a declaration (see

CPLR 5511; Savino v DeLeyer, 160 AD2d 989, 990-991). We therefore

dismiss the appeal to that extent (see Savino, 160 AD2d at 990-991). 

Moreover, plaintiff did not take a cross appeal from that part of the

order denying his motion to the extent that it sought declaratory

relief, and thus his contention that the court erred with respect to

that denial is not properly before us (see Harris v Eastman Kodak Co.,

83 AD3d 1563, 1564; Zeman v Falconer Elecs., Inc., 55 AD3d 1240, 1241;

see generally CPLR 5515 [1]). 

We further conclude that the court properly granted that part of

plaintiff’s motion with respect to defendant’s counterclaim to the

extent that it sought liquidated damages pursuant to the formula set

forth in the noncompetition covenant, i.e., “150% of [plaintiff’s]

annual W-2 gross income and bonus at termination.” “Whether [that

formula] represents an enforceable liquidation of damages or an

unenforceable penalty is a question of law, giving due consideration

to the nature of the [employment agreement] and the circumstances”

(JMD Holding Corp. v Congress Fin. Corp., 4 NY3d 373, 379). Plaintiff

met his initial burden of establishing that the liquidated damages

sought by defendant are a penalty by submitting evidence that the

amount of such damages, i.e., approximately $555,000, is “grossly

disproportionate to” defendant’s anticipated loss from plaintiff’s

alleged breach of the noncompetition covenant (Truck Rent-A-Ctr. v

Puritan Farms 2nd, 41 NY2d 420, 424; see JMD Holding Corp., 4 NY3d at

380; Fingerlakes Chiropractic v Maggio, 269 AD2d 790, 791; Borek,

Stockel & Co. v Slevira, 203 AD2d 314, 314-315), and defendant failed

to raise a triable issue of fact. We agree with defendant, however,

that the counterclaim is intact to the extent that defendant is

entitled to actual damages arising from plaintiff’s alleged breach

(see Borek, Stockel & Co., 203 AD2d at 314-315; Novendstern v Mt.

Kisco Med. Group, 177 AD2d 623, 625, lv dismissed 80 NY2d 826).

Entered: February 8, 2013 Frances E. Cafarell

Clerk of the Court