right to compete.” 164 N.Y.S.2d at 243. However, in Bradford v. New York Times Co., 501 F.2d 51 (2nd Cir.1974), the Second Circuit stated that in light of subsequent decisions by the Court of Appeals of New York: We do not agree that Kristt represents the law of the state if it be construed to eliminate any inquiry into reasonableness because of some purported doctrine of ‘employee choice.’ The inquiry remains whether or not the restraint was reasonable and the contract was breached. 501 F.2d at 57. Although the Second Circuit in Bradford had apparently interred the much criticized “employee choice” rule, at least three district court decisions within the Second Circuit have since concluded that Kristt remains alive and well. Murphy v. Gutfreund, 583 F.Supp. 957, 962-65 (S.D.N.Y.1984) (<HOLDING>); Diakoff v. American Re-Insurance Co., 492
holding injured employee who asked his employer for medical assistance and employer refused and employee then went to physician of his own choice employee could recover medical benefits recognizing rule holding that res judicata properly barred claims based on an employers decision to terminate an employee because the termination was not a fresh act of discrimination rather it was the same decision not to allow the employee to return to work that the employee had challenged previously recognizing the employee choice rule but refusing to apply the rule to noncompetition clause imposed after former employee agreed to work for a competitor recognizing that the survivor of a deceased federal employee has no standing to file an eeo complaint on behalf of that former employee but personal representative of deceased employee can be substituted as plaintiff if deceased employee initiated complaint prior to death