JAD Corp. of Am. v. Lewis

Full title: JAD CORPORATION OF AMERICA, appellant, v. MARC LEWIS, respondent

Court: Appellate Division of the Supreme Court of New York, Second Department

Date published: May 19, 2003

305 A.D.2d 545 (N.Y. App. Div. 2003)

759 N.Y.S.2d 388

Opinion

2002-06159

Argued April 10, 2003.

May 19, 2003.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Suffolk County (Cohalan, J.), dated June 6, 2002, as granted the defendant's cross motion for summary judgment dismissing the complaint.

Milman Heidecker, Lake Success, N.Y. (Perry S. Heidecker of counsel), for appellant.

Thomas J. Maimone, Mineola, N.Y., for respondent.

Before: ANITA R. FLORIO, J.P., HOWARD MILLER, THOMAS A. ADAMS, REINALDO E. RIVERA, JJ.

DECISION ORDER

ORDERED that the order is affirmed insofar as appealed from, with costs, and the defendant's counterclaim is severed.

The defendant is a former employee of the plaintiff. In this action, the plaintiff seeks, inter alia, to recover damages for the defendant's alleged violation of a restrictive covenant the defendant signed while still in the plaintiff's employ.

Restrictive covenants in the employment context are carefully scrutinized, and are disfavored since there are "powerful considerations of public policy which militate against sanctioning the loss" of a person's livelihood (Columbia Ribbon Carbon Mfg. Co. v. A-1-A Corp., 42 N.Y.2d 496, 499 [citation and internal quotation marks omitted]; see Reed, Roberts Assoc. v. Strauman, 40 N.Y.2d 303, 307).

The defendant made a prima facie showing of entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320). In particular, the defendant demonstrated that his services were neither unique nor extraordinary (see Reed, Roberts Assoc. v. Strauman, supra), and that the information the plaintiff sought to protect is readily available from publicly-available sources, and thus not entitled to trade-secret protection (see Leo Silfen, Inc. v. Cream, 29 N.Y.2d 387). In opposition, the plaintiff failed to come forward with evidence sufficient to raise a triable issue of fact (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851). Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

The plaintiff's remaining contentions either are unnecessary to consider in light of our determination, or without merit.

FLORIO, J.P., H. MILLER, ADAMS and RIVERA, JJ., concur.