Opinion
October 1, 1993
Appeal from the Supreme Court, Erie County, Cosgrove, J.
Present — Callahan, J.P., Pine, Lawton, Doerr and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court did not err in denying plaintiff's motion for a preliminary injunction or in granting defendants' cross motion for summary judgment dismissing the complaint, which sought to enforce a restrictive covenant contained in an employment agreement between plaintiff and defendant Roger M. Seifert (Seifert) dated July 28, 1987. It is well established that restrictive covenants contained in employment contracts that tend to prevent an employee from pursuing a similar vocation after termination are disfavored in the law (see, Columbia Ribbon Carbon Mfg. Co. v. A-1-A Corp., 42 N.Y.2d 496, 499; Comcast Sound Communications v. Hoeltke, 174 A.D.2d 1023, lv dismissed 79 N.Y.2d 915; Buffalo Imprints v Scinta, 144 A.D.2d 1025, 1026; Newco Waste Sys. v. Swartzenberg, 125 A.D.2d 1004). Such restrictive covenants will not be enforced "unless necessary to protect the trade secrets, customer lists or good will of the employer's business, or perhaps when the employer is exposed to special harm because of the unique nature of the employee's services" (American Broadcasting Cos. v. Wolf, 52 N.Y.2d 394, 403; see, Comcast Sound Communications v. Hoeltke, supra, at 1023-1024; Kraft Agency v. Delmonico, 110 A.D.2d 177, 182). Furthermore, where an employer's customer lists "are readily ascertainable from sources outside its business, trade secret protection will not attach and their solicitation by the employee will not be enjoined" (Columbia Ribbon Carbon Mfg. Co. v. A-1-A Corp., supra, at 499; see, Buffalo Imprints v. Scinta, supra, at 1027; Walter Karl, Inc. v. Wood, 137 A.D.2d 22, 27).
Under the circumstances of this case, the restrictive covenant is not enforceable because plaintiff's customer lists do not qualify for trade secret protection. Defendants established that plaintiff's customer lists are readily ascertainable from many sources, including a brochure published by plaintiff and widely distributed to plaintiff's clients. Plaintiff did not refute defendants' showing. Additionally, defendants established that, although Seifert was a highly successful and valuable account executive, he was not irreplaceable and his leaving did not cause plaintiff special harm.
Finally, consistent with our determination that the restrictive covenant is unenforceable, we conclude that Supreme Court properly denied plaintiff's motion for a preliminary injunction.