Power-Flo Tech. v. Crisp

2024 NY Slip Op 05231

Power-Flo Technologies, Inc., appellant, v. Dale Crisp, respondent.

No. 2023-00342, Index No. 610365/22

Supreme Court of New York, Second Department

October 23, 2024

Robert J. Ansell, New Hyde Park, NY, for appellant.

Dale Crisp, Grand Island, NY, respondent pro se.

COLLEEN D. DUFFY, J.P., PAUL WOOTEN, BARRY E. WARHIT, JANICE A. TAYLOR, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for breach of contract and for injunctive relief, the plaintiff appeals from an order of the Supreme Court, Nassau County (Jerome C. Murphy J.), entered December 13, 2022. The order denied the plaintiff's motion for a preliminary injunction, among other things, enjoining the defendant from contacting or soliciting the plaintiff's customers, employees, and vendors.

ORDERED that the order is affirmed, with costs.

In August 2022, the plaintiff commenced this action against the defendant, its former employee, inter alia, to recover damages for breach of contract and for injunctive relief. The plaintiff alleged, among other things, that the defendant signed a confidentiality and nonsolicitation agreement (hereinafter the agreement) when he was employed by the plaintiff and that the defendant breached the restrictive covenants in the agreement by soliciting the plaintiff's customers and employees and transferring to himself a copy of the plaintiff's customer list. Simultaneously with the commencement of the action, the plaintiff moved for a preliminary injunction, inter alia, enjoining the defendant from contacting or soliciting the plaintiff's customers employees, and vendors. In an order entered December 13 2022, the Supreme Court denied the motion. The plaintiff appeals.

Initially, contrary to the defendant's contention, this appeal is not academic. Although the agreement provides that the restricted period expires one year following the termination of the defendant's employment, the agreement contains a provision extending that time period in the event of a determination by a court that the defendant has been in violation of the restrictive covenants (cf. Delta Enter. Corp. v Cohen, 93 A.D.3d 411, 412).

Turning to the merits of the appeal, "[t]o establish the right to a preliminary injunction, the plaintiff must prove by clear and convincing evidence (1) the likelihood of ultimate success on the merits, (2) irreparable injury absent the grant of the injunction, and (3) a balance of the equities in the plaintiff's favor" (Keneally, Lynch & Bak, LLP v Salvi, 190 A.D.3d 961, 963; see Cushing v Sanford Equities Corp., 223 A.D.3d 870, 871). "Although the purpose of a preliminary injunction is to preserve the status quo pending a trial, the remedy is considered a drastic one, which should be used sparingly" (Soundview Cinemas, Inc. v AC I Soundview, LLC, 149 A.D.3d 1121, 1123; see Seagate Mini Mall, Inc. v Seagate Assn., Inc., 201 A.D.3d 759, 761).

Here the plaintiff failed to demonstrate a likelihood of success on the merits. A restrictive covenant in an employment agreement is reasonable only if it "(1) is no greater than is required for the protection of the legitimate interest of the employer, (2) does not impose undue hardship on the employee, and (3) is not injurious to the public" (BDO Seidman v Hirshberg, 93 N.Y.2d 382, 388-389; see ...