Anametrics Serv., Inc.v.Clifford A. Botway

Appellate Division of the Supreme Court of New York, First DepartmentMar 8, 1990
552 N.Y.S.2d 238 (N.Y. App. Div. 1990)
552 N.Y.S.2d 238159 A.D.2d 247

March 8, 1990

Appeal from the Supreme Court, New York County (Ethel B. Danzig, J.).

The parties entered into a restrictive covenant whose authenticity was established by unchallenged expert testimony. Plaintiff's inability to produce the original of that document was overcome by production of a photocopy made in the ordinary course of business (CPLR 4539). The covenant, which was designed to protect plaintiff from defendant's direct solicitation of business from plaintiff's principal client for two years after termination of that relationship, was narrowly drawn for this purpose (see, Ecolab, Inc. v K.P. Laundry Mach., 656 F. Supp. 894), and thus was reasonable in geographic scope and time (Matter of Sprinzen [Nomberg], 46 N.Y.2d 623, 632; Uniform Rental Div. v Moreno, 83 A.D.2d 629). A subsequent oral settlement agreement, whose authenticity was established by unchallenged tape recording, was valid and enforceable, notwithstanding the Statute of Frauds, because it was capable of being performed within one year (North Shore Bottling Co. v Schmidt Sons, 22 N.Y.2d 171; Dickenson v Dickenson Agency, 127 A.D.2d 983, 984).

Summary dismissal of the third cause of action, against the principal shareholder of the corporate defendant for allegedly interfering with plaintiff's contractual relations with its client for the individual defendant's personal profit and gain, was proper, in the absence of clear evidence of separate tortious acts committed outside the scope of the individual defendant's corporate representative capacity (Rothschild v World-Wide Autos. Corp., 24 A.D.2d 861, affd 18 N.Y.2d 982).

Concur — Kupferman, J.P., Carro, Milonas, Ellerin and Rubin, JJ.