Preview
FILED: TIOGA COUNTY CLERK 09/04/2019 01:54 PM INDEX NO. 2019-60756
NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 09/04/2019
EXHIBIT A
FILED: TIOGA COUNTY CLERK 09/04/2019 01:54 PM INDEX NO. 2019-60756
I
NYSCEF DOC. NO. 8 RECEIVED NYSCEF:
INDEX 09/04/2019
NO. 2019-607-6
FILED: TIO A COUNTY CLERK 09 04 2019 11:15
NYSCEF DOC. N 1 RECEIVED NYSCEF: 09/04/20 9
ST A TE OF NEW YORK
SUPREME COURT : COUNTY OF TIOGA
ENDLESS MOUNTAINS VETERINARY CENTER.
P.C..
Plaintiff. SUMMONS
VS.
Index No.
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~ KIMBERLY CLEVELAND and DICKIN
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~ MEMORIAL ANIMAL HO SPIT AL, PLLC,
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Defendants.
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g or answer, judgment will be taken against you by default for the relief demanded in the Complaint.
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E DATED: September 4, 2019 HANCOCK ESTABROOK, LLP
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5 Center"), by and through its attorneys, Hancock Estabrook, LLP, as and for its Complaint against
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~ Defendants, Kimberly Cleveland, DVM and Dickin Memorial Animal Hospital, PLLC
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j (DMAH") (collectively Defendants"), states as follows:
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resigning effective May 10, 2019 and tendered her unsigned resignation letter via e-mail.
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z Defendant Cleveland then amended her effective resignation date to May 13. 2019.
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t;; 17. Defendant Cleveland has retained these funds, which are in excess of her base salary.
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LL} 25. Plaintiff had its legal counsel send a cease and desist letter to Defendant Cleveland's
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o 34. Upon information and belief. Defendant Cleveland will continue to solicit and/or
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35. Additionally, upon information and belief, Defendant Cleveland has dissuaded
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O 36. Further, Section 16(e) of the Agreement provides:
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r During and for two years after Employee ceases to be employed by
the Center, for any reason, Employee agrees not to recruit, solicit.
encourage, entice or hire away any owner, independent contractor or
employee working for or associated with the Center to participate in
or assist with the formation or operation of any business that competes
or intends to compete with the Center ....
37. Upon information and belief, Defendant Cleveland has solicited personnel from
Plaintiff to work at DMAH and will continue to do so.
{H3698445.1} 5
5 of 9
FILED: TIOGA COUNTY CLERK 09/04/2019 01:54 PM INDEX NO. 2019-60756
NYSCEF DOC. NO. 8 RECEIVED NYSCEF:
INDEX 09/04/2019
NO. 2019-607 6
FILED: TIO A COUNTY CLERK 09 04 2019 11:15
NYSCEF DOC. N 2 RECEIVED NYSCEF: 09/04/20 9
DISPARAGING COMMENTS:
38. Section 16(h) of the Agreement states each party agrees not to make any public or
private statements or communications in any medium, including social networking media that
disparage or defames the other. the Center's staff members and/or the procedures and services
provided by the Center."
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~o 39. Upon information and belief. Defendant Cleveland has made disparaging and/or
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~ defamatory comments about Plaintiff in public and private regarding Plaintiff. its staff and its
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5 Defendant Cleveland's willful breaches of the Agreement and will continue to lose patients and
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FIRST CAUSE OF ACTION
BREACHES OF CONTRACT- DEFENDANT CLEVELAND
o 41. Plaintiff repeats and re-alleges each of the foregoing paragraphs as if set forth more
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DO 42. Defendant Cleveland was hired to work as a veterinarian for Plaintiff and enjoyed
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for over 15 months before she resigned.
43. Under the Agreement she signed when she accepted employment with Plaintiff.
Defendant Cleveland is contractually prohibited from providing veterinary services within a fifteen
(15) air-mile radius of Plaintiffs facilities for one year and eleven weeks from her last date of
employment, May 13, 2019.
{H3698445.1} 6
6 of 9
FILED: TIOGA COUNTY CLERK 09/04/2019 01:54 PM INDEX NO. 2019-60756
I
NYSCEF DOC. NO. 8 RECEIVED NYSCEF:
INDEX 09/04/2019
NO. 2019-60756
FILED: TI A COUNTY CLERK 09 04 2019 11:15
NYSCEF DOC. N 2 RECEIVED NYSCEF: 09/04/20 9
44. Defendant has violated and continues to violate this contractual obligation as
outlined above and herein. by working for Defendant DMAH. which is within the restricted area.
45. Defendant Cleveland is contractually prohibited from using her employee discount
for animals that are not her personal pets.
46. Defendant Cleveland has violated this contractual obligation as outlined above and
~ herein, by purchasing pet care supplies for use on animals at a shelter that are not her personal pets.
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47. Defendant Cleveland is contractually prohibited from soliciting and/or diverting
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si 50. Additionally, because of Defendant Cleveland's actions. Plaintiff has suffered, and
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from lost patients and referral business ordinarily obtained from lost patients.
51. Plaintiff is entitled to recover and seeks a preliminary and permanent injunction
enjoining, restraining and prohibiting Defendant from violating the Restrictive Covenant portion of
the Agreement for a period of one year and eleven weeks from the effective date of such an Order
by the Court.
{H3698445.1} 7
7 of 9
FILED: TIOGA COUNTY CLERK 09/04/2019 01:54 PM INDEX NO. 2019-60756
NYSCEF DOC. NO. 8 RECEIVED NYSCEF:
INDEX 09/04/2019
NO. 2019-607 6
FILED: TI A COUNTY CLERK 09 04 2019 11:15
NYSCEF DOC. N 2 RECEIVED NYSCEF: 09/04/20 9
SECOND CAUSE OF ACTION
TORTIOUS INTERFERENCE WITH CONTRACT= DEFENDANT DMAH
52. Plaintiff repeats and re-alleges each of the foregoing paragraphs as if set forth more
fully herein.
53. Defendant Cleveland and Plaintiff had a valid and enforceable contract. in the form
of the Agreement, throughout the relevant time period.
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54. Defendant DMAH acted with full knowledge of the Agreement between Plaintiff and
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~ Defendant Cleveland.
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~ 55. By virtue of Defendant DMAH's conduct in employing former Defendant Cleveland.
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~ DMAH has interfered with the Agreement existing between Plaintiff and Defendant Cleveland.
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and continues to harm Plaintiff.
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or 57. As a direct and proximate result of Defendant DMAH's conduct, Plaintiff has
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t B. An injunction precluding Defendant Dickin Memorial Animal Hospital from
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's Sin@t®,
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Center's Ag&ft Signature
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Date
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12l± hr±5_ G[3311X
Witness 'ate"
26
Private and Confidential
EVMC, PC Version 1-9-2018
MIO!WWW!WINNA»NAO
_ 2rs,e-
FILED: TIOGA COUNTY CLERK 09/04/2019 01:54 PM INDEX NO. 2019-60756
NYSCEF DOC. NO. 8 RECEIVED NYSCEF:
INDEX 09/04/2019
NO. 2019-60756
FILED: TIOGA COUNTY CLERK 09/O4/2019 Tl:l5 A
NYSCEFeDOC. NO. 3 RECEIVED NYSCEF: 09/04/2019
APPENDIX "A"
As of the date below, the parties to this Agreement hereby agree to the following alterations,
supplemental language and/or clarifications.
1. For section 16.B.i - Years of Service working for Owego Veterinary Hospital count toward
years of employment, in regards to the restricted period.
IN WITNESS WHEREOF, the parties hereto have agreed upon and executed this Attachment
as of the date set forth below.
{ocha[ A zeta.0 alzalt
Em lo;:h Signa~
ure Date
7/
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Preview
FILED: TIOGA COUNTY CLERK 09/04/2019 01:54 PM INDEX NO. 2019-60756 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: 09/04/2019 EXHIBIT A FILED: TIOGA COUNTY CLERK 09/04/2019 01:54 PM INDEX NO. 2019-60756 I NYSCEF DOC. NO. 8 RECEIVED NYSCEF: INDEX 09/04/2019 NO. 2019-607-6 FILED: TIO A COUNTY CLERK 09 04 2019 11:15 NYSCEF DOC. N 1 RECEIVED NYSCEF: 09/04/20 9 ST A TE OF NEW YORK SUPREME COURT : COUNTY OF TIOGA ENDLESS MOUNTAINS VETERINARY CENTER. P.C.. Plaintiff. SUMMONS VS. Index No. ©s co RJ] NO. --------- ~ KIMBERLY CLEVELAND and DICKIN ~ ~ MEMORIAL ANIMAL HO SPIT AL, PLLC, ~ L) z ud (I) Defendants. 2 CO < g or answer, judgment will be taken against you by default for the relief demanded in the Complaint. ~ 0.. E DATED: September 4, 2019 HANCOCK ESTABROOK, LLP si 0 ~a < (I) LL) ~o BY: 0 O ~all,Esq. z - Cl) t Plaintiff, Endless Mountains Veterinary Center, P.C. (hereafter Plaintiff" or the LL) or e Cl) 5 Center"), by and through its attorneys, Hancock Estabrook, LLP, as and for its Complaint against = ~ Defendants, Kimberly Cleveland, DVM and Dickin Memorial Animal Hospital, PLLC or j (DMAH") (collectively Defendants"), states as follows: < )( - resigning effective May 10, 2019 and tendered her unsigned resignation letter via e-mail. c >- U z Defendant Cleveland then amended her effective resignation date to May 13. 2019. 0 © 10. a - D t;; 17. Defendant Cleveland has retained these funds, which are in excess of her base salary. LL) or .... (J) ~ in violation of the Agreement. a- ,. .. D LL} 25. Plaintiff had its legal counsel send a cease and desist letter to Defendant Cleveland's L or e r ~ counsel via U.S. certified mail and e-mail on June 25, 2019. A copy of the letter is attached as 0 5 << > s EXHIBIT B. cr uJ ~ 26. The cease and desist letter advised Defendant Cleveland that she was in direct breach < X g o 34. Upon information and belief. Defendant Cleveland will continue to solicit and/or LL) 3 0 j 5< divert business from Plaintiff to Defendant DMAH. 35. Additionally, upon information and belief, Defendant Cleveland has dissuaded i clients from using Plaintiffs services and will continue to do so. a, ~ U LL) "' O 36. Further, Section 16(e) of the Agreement provides: 0 (.) z < r During and for two years after Employee ceases to be employed by the Center, for any reason, Employee agrees not to recruit, solicit. encourage, entice or hire away any owner, independent contractor or employee working for or associated with the Center to participate in or assist with the formation or operation of any business that competes or intends to compete with the Center .... 37. Upon information and belief, Defendant Cleveland has solicited personnel from Plaintiff to work at DMAH and will continue to do so. {H3698445.1} 5 5 of 9 FILED: TIOGA COUNTY CLERK 09/04/2019 01:54 PM INDEX NO. 2019-60756 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: INDEX 09/04/2019 NO. 2019-607 6 FILED: TIO A COUNTY CLERK 09 04 2019 11:15 NYSCEF DOC. N 2 RECEIVED NYSCEF: 09/04/20 9 DISPARAGING COMMENTS: 38. Section 16(h) of the Agreement states each party agrees not to make any public or private statements or communications in any medium, including social networking media that disparage or defames the other. the Center's staff members and/or the procedures and services provided by the Center." c ~o 39. Upon information and belief. Defendant Cleveland has made disparaging and/or ¢ er ~ defamatory comments about Plaintiff in public and private regarding Plaintiff. its staff and its L} z ~ procedures and services, and will continue to do so. ~cr >- U t;; 40. Upon information and belief, Plaintiff has lost patients and employees as a result of LL) o » v, 5 Defendant Cleveland's willful breaches of the Agreement and will continue to lose patients and a< z ~ patient goodwill if her unlawful actions are not stopped. FIRST CAUSE OF ACTION BREACHES OF CONTRACT- DEFENDANT CLEVELAND o 41. Plaintiff repeats and re-alleges each of the foregoing paragraphs as if set forth more a a ~ g fully herein. Cr ~ L) % DO 42. Defendant Cleveland was hired to work as a veterinarian for Plaintiff and enjoyed 0 O z < :x: the benefit of gainful employment and access to Plaintiffs patients and marketing of her services for over 15 months before she resigned. 43. Under the Agreement she signed when she accepted employment with Plaintiff. Defendant Cleveland is contractually prohibited from providing veterinary services within a fifteen (15) air-mile radius of Plaintiffs facilities for one year and eleven weeks from her last date of employment, May 13, 2019. {H3698445.1} 6 6 of 9 FILED: TIOGA COUNTY CLERK 09/04/2019 01:54 PM INDEX NO. 2019-60756 I NYSCEF DOC. NO. 8 RECEIVED NYSCEF: INDEX 09/04/2019 NO. 2019-60756 FILED: TI A COUNTY CLERK 09 04 2019 11:15 NYSCEF DOC. N 2 RECEIVED NYSCEF: 09/04/20 9 44. Defendant has violated and continues to violate this contractual obligation as outlined above and herein. by working for Defendant DMAH. which is within the restricted area. 45. Defendant Cleveland is contractually prohibited from using her employee discount for animals that are not her personal pets. 46. Defendant Cleveland has violated this contractual obligation as outlined above and ~ herein, by purchasing pet care supplies for use on animals at a shelter that are not her personal pets. o 32¢ a: -~ 0 LL 47. Defendant Cleveland is contractually prohibited from soliciting and/or diverting z ~ business from Plaintiff. dissuading clients from utilizing Plaintiffs services, or soliciting personnel (..) [] from Plaintiff LL) r t l 48. Defendant Cleveland has violated and continues to violate these contractual VJ 5 < g obligations as outlined above and herein. c LL) ~ 49. By reason of the foregoing. Plaintiff is entitled to damages in an amount to be < X <« ~ determined at trial. ~ ...I si 50. Additionally, because of Defendant Cleveland's actions. Plaintiff has suffered, and 0 0 a: ~ will continue to suffer, irreparable harm for which monetary damages will be inadequate and LI Y (..) ~ impossible to fully ascertain, including the loss of patients and their goodwill. the associated revenue 5 from lost patients and referral business ordinarily obtained from lost patients. 51. Plaintiff is entitled to recover and seeks a preliminary and permanent injunction enjoining, restraining and prohibiting Defendant from violating the Restrictive Covenant portion of the Agreement for a period of one year and eleven weeks from the effective date of such an Order by the Court. {H3698445.1} 7 7 of 9 FILED: TIOGA COUNTY CLERK 09/04/2019 01:54 PM INDEX NO. 2019-60756 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: INDEX 09/04/2019 NO. 2019-607 6 FILED: TI A COUNTY CLERK 09 04 2019 11:15 NYSCEF DOC. N 2 RECEIVED NYSCEF: 09/04/20 9 SECOND CAUSE OF ACTION TORTIOUS INTERFERENCE WITH CONTRACT= DEFENDANT DMAH 52. Plaintiff repeats and re-alleges each of the foregoing paragraphs as if set forth more fully herein. 53. Defendant Cleveland and Plaintiff had a valid and enforceable contract. in the form of the Agreement, throughout the relevant time period. pg co g pr 54. Defendant DMAH acted with full knowledge of the Agreement between Plaintiff and 3 ~ Defendant Cleveland. uj I ::> O ~ 55. By virtue of Defendant DMAH's conduct in employing former Defendant Cleveland. D ~ £E permitting her to recruit Plaintiffs employees, and permitting her to solicit and/or divert business z 0 J ~ away from Plaintiff, with knowledge of Defendant Cleveland's Agreement with Plaintiff. Defendant > co co ~ DMAH has interfered with the Agreement existing between Plaintiff and Defendant Cleveland. L s0 » << 9¢ 56 . By virtue of its conduct, Defendant DMAH has knowingly and intentionally harmed <«t co co co and continues to harm Plaintiff. 3 Y 0 0 or 57. As a direct and proximate result of Defendant DMAH's conduct, Plaintiff has c ! U 3 suffered monetary damages. 0 CO z Cl) t B. An injunction precluding Defendant Dickin Memorial Animal Hospital from w Cr I-- Cl) ~ tortiously interfering with the Agreement between Plaintiff and Defendant Cleveland, together with a< i a monetary amount to be proven at trial and pre-and post-judgment interest at 9% as authorized by - ca 5» he NY CPLR; 's Sin@t®, 5. PL2E Center's Ag&ft Signature <_[ r. >% C¢ Date " 12l± hr±5_ G[3311X Witness 'ate" 26 Private and Confidential EVMC, PC Version 1-9-2018 MIO!WWW!WINNA»NAO _ 2rs,e- FILED: TIOGA COUNTY CLERK 09/04/2019 01:54 PM INDEX NO. 2019-60756 NYSCEF DOC. NO. 8 RECEIVED NYSCEF: INDEX 09/04/2019 NO. 2019-60756 FILED: TIOGA COUNTY CLERK 09/O4/2019 Tl:l5 A NYSCEFeDOC. NO. 3 RECEIVED NYSCEF: 09/04/2019 APPENDIX "A" As of the date below, the parties to this Agreement hereby agree to the following alterations, supplemental language and/or clarifications. 1. For section 16.B.i - Years of Service working for Owego Veterinary Hospital count toward years of employment, in regards to the restricted period. IN WITNESS WHEREOF, the parties hereto have agreed upon and executed this Attachment as of the date set forth below. {ocha[ A zeta.0 alzalt Em lo;:h Signa~ ure Date 7/ gzJL 2 f «&