Opinion
2012-06-13
ARTHUR J. GALLAGHER & CO., et al., appellants, v. Joseph C. MARCHESE, et al., respondents.
Marin Goodman, LLP, Harrison, N.Y. (Kathleen Agnelli and Paul B. Josephs of counsel), for appellants. Fensterstock & Partners, LLP, New York, N.Y. (Blair C. Fensterstock, Thomas A. Brown II, Eugene D. Kublanovsky, Allison M. Charles, and Kristen Madison of counsel), for respondents.
Marin Goodman, LLP, Harrison, N.Y. (Kathleen Agnelli and Paul B. Josephs of counsel), for appellants. Fensterstock & Partners, LLP, New York, N.Y. (Blair C. Fensterstock, Thomas A. Brown II, Eugene D. Kublanovsky, Allison M. Charles, and Kristen Madison of counsel), for respondents.
REINALDO E. RIVERA, J.P., THOMAS A. DICKERSON, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.
In an action, inter alia, to recover damages for breach of an employment contract and for injunctive relief, the plaintiffs appeal from (1) an order of the Supreme Court, Westchester County (Loehr, J.), entered February 25, 2011, which denied their motion for a preliminary injunction, in effect, enforcing a restrictive covenant in the defendants' employment agreements, and (2) an order of the same court entered July 14, 2011, which denied their motion for leave to renew and reargue.
ORDERED that the order entered February 25, 2011, is affirmed; and it is further,
ORDERED that the appeal from so much of the order entered July 14, 2011, as denied that branch of the plaintiffs' motion which was for leave to reargue is dismissed, as no appeal lies from an order denying reargument; and it is further,
ORDERED that the order entered July 14, 2011, is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the defendants.
To obtain a preliminary injunction, a movant must establish, by clear and convincing evidence, (1) a likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) a balancing of the equities in the movant's favor ( seeCPLR 6301; Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 840, 800 N.Y.S.2d 48, 833 N.E.2d 191;Dover Gourmet Corp. v. Nassau Health Care Corp., 89 A.D.3d 979, 979, 933 N.Y.S.2d 574;S.J.J.K. Tennis, Inc. v. Confer Bethpage, LLC, 81 A.D.3d 629, 629–630, 916 N.Y.S.2d 789). The decision to grant or deny a preliminary injunction lies within the sound discretion of the Supreme Court ( see Doe v. Axelrod, 73 N.Y.2d 748, 750, 536 N.Y.S.2d 44, 532 N.E.2d 1272;Dover Gourmet Corp. v. Nassau Health Care Corp., 89 A.D.3d at 979, 933 N.Y.S.2d 574;Arcamone–Makinano v. Britton Prop., Inc., 83 A.D.3d 623, 625, 920 N.Y.S.2d 362).
A restrictive covenant in an employment agreement will only be enforceable if, inter alia, it is necessary to protect the employer's legitimate interests ( see BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 388–389, 690 N.Y.S.2d 854, 712 N.E.2d 1220;Reed, Roberts Assoc. v. Strauman, 40 N.Y.2d 303, 307, 386 N.Y.S.2d 677, 353 N.E.2d 590). An employer's interests justifying a restrictive covenant are limited “to the protection against misappropriation of the employer's trade secrets or of confidential customer lists, or protection from competition by a former employee whose services are unique or extraordinary” ( BDO Seidman v. Hirshberg, 93 N.Y.2d at 389, 690 N.Y.S.2d 854, 712 N.E.2d 1220;see Reed, Roberts Assoc. v. Strauman, 40 N.Y.2d at 308, 386 N.Y.S.2d 677, 353 N.E.2d 590). In addition, “[t]he employer has a legitimate interest in preventing former employees from exploiting or appropriating the goodwill of a client or customer, which had been created and maintained at the employer's expense, to the employer's competitive detriment” ( BDO Seidman v. Hirshberg, 93 N.Y.2d at 392, 690 N.Y.S.2d 854, 712 N.E.2d 1220;see Gundermann & Gundermann Ins. v. Brassill, 46 A.D.3d 615, 616, 853 N.Y.S.2d 82;Milbrandt & Co. v. Griffin, 1 A.D.3d 327, 328, 766 N.Y.S.2d 588).
The Supreme Court providently exercised its discretion in denying the plaintiffs' motion for a preliminary injunction, in effect, enforcing a restrictive covenant in the defendants' employment agreements ( see BDO Seidman v. Hirshberg, 93 N.Y.2d at 390–391, 690 N.Y.S.2d 854, 712 N.E.2d 1220;Reed, Roberts Assoc. v. Strauman, 40 N.Y.2d at 308–309, 386 N.Y.S.2d 677, 353 N.E.2d 590;Natural Organics, Inc. v. Kirkendall, 52 A.D.3d 488, 489–490, 860 N.Y.S.2d 142;Milbrandt & Co. v. Griffin, 1 A.D.3d at 328, 766 N.Y.S.2d 588;Price Paper & Twine Co. v. Miller, 182 A.D.2d 748, 749–750, 582 N.Y.S.2d 746;Brewster–Allen–Wichert, Inc. v. Kiepler, 131 A.D.2d 620, 516 N.Y.S.2d 949;cf. Gundermann & Gundermann Ins. v. Brassill, 46 A.D.3d at 616, 853 N.Y.S.2d 82).
The Supreme Court properly denied that branch of the plaintiffs' motion which was for leave to renew their motion for a preliminary injunction, since the new facts offered on the motion would not have changed the prior determination ( seeCPLR 2221[e][2]; Grossman v. New York Life Ins. Co., 90 A.D.3d 990, 992, 935 N.Y.S.2d 643).