Opinion
May 27, 1993
Appeal from the Supreme Court, New York County (Harold Baer, Jr., J.).
The court found that defendant, a former employee of plaintiff, breached a restrictive covenant not to compete following his departure from plaintiff's employ. As a result, we agree with Trial Term that the proper measure of damages is the net profit of which plaintiff was deprived by reason of defendant's improper competition with plaintiff (Support Sys. Assocs. v Tavolacci, 135 A.D.2d 704, 707; Weinrauch v Kashkin, 64 A.D.2d 897, 898). Disgorgement of defendant's profits would be the proper measure of damage if defendant had used the trade secrets for his own benefit while still in plaintiff's employ.
Moreover, Trial Term correctly declined to issue an injunction since the parties' employment agreement contained but a one-year nonsolicitation clause and the one year has long since passed. A permanent injunction need not issue where plaintiff may be made whole in damages.
Concur — Murphy, P.J., Milonas, Kupferman, Ross and Nardelli, JJ.