| Gundermann & Gundermann Ins. v Brassill |
| 2007 NY Slip Op 09725 [46 AD3d 615] |
| December 11, 2007 |
| Appellate Division, Second Department |
| Gundermann & Gundermann Insurance,Respondent, v James Brassill et al., Appellants. |
—[*1] Robert L. Folks & Associates, LLP, Melville, N.Y. (Eugene S. R. Pagano and Cynthia A.Kouril of counsel), for respondent.
In an action, inter alia, for injunctive relief and to recover damages for breach of contract, thedefendants appeal, as limited by their brief, from (1) so much of an order of the Supreme Court,Suffolk County (Weber, J.), dated August 11, 2006, as, after a hearing, granted the plaintiff'smotion for a preliminary injunction to the extent of enjoining them from soliciting any of theplaintiff's customers and clients for a period of 18 months up to and including December 26,2007, and (2) an order of the same court dated September 12, 2006, granting their application tomodify the order dated August 11, 2006, so as to permit them to post, in two installments, anundertaking previously imposed as a condition of their continuing to service those of theplaintiff's customers and clients as had already retained them.
Ordered that the appeal from the order dated September 12, 2006 is dismissed, as thedefendants are not aggrieved thereby (see CPLR 5511); and it is further,
Ordered that the order dated August 11, 2006 is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiff.[*2]
Generally, a party is entitled to a preliminary injunctionupon a demonstration of (1) probability of success on the merits, (2) danger of irreparable harmin the absence of an injunction, and (3) a balance of equities in its favor (see CPLR 6312;W.T. Grant Co. v Srogi, 52 NY2d 496, 517 [1981]; Matter of Related Props., Inc. v Town Bd. of Town/Vil. of Harrison, 22AD3d 587, 590 [2005]; Milbrandt& Co. v Griffin, 1 AD3d 327 [2003]). The plaintiff met this burden.
Courts will enforce noncompetition clauses "where necessary to protect, inter alia, anemployer's confidential customer information and the goodwill of . . . customer[s]generated and maintained at the employer's expense" (Milbrandt & Co. v Griffin, 1 AD3dat 328; see BDO Seidman v Hirshberg, 93 NY2d 382, 392 [1999]; DS Courier Servs., Inc. v Seebarran, 40AD3d 271 [2007]; Willis of N.Y. v DeFelice, 299 AD2d 240 [2002]). Here, theSupreme Court properly concluded that the plaintiff, an insurance agency established in 1937,incurred significant costs in training employees, in overhead expenses, and in developing itsclient base, and that it built up significant business goodwill as it developed its client base. Theplaintiff thus established a legitimate interest in protecting the client information that thedefendants acquired from their employment with the plaintiff, and the goodwill that thedefendants now seek to exploit. Thus, it is probable that the nonsolicitation provisions containedin the subject employment agreement are enforceable to the extent limited by the Supreme Court.
There was testimony at the hearing that lost commissions comprised only a portion of theplaintiff's damages. The plaintiff also was damaged from, inter alia, the opportunity it lost inbeing able to "round out the account," a phrase which describes the sale of additional insuranceproducts to a client. Lost goodwill and lost opportunity are damages which are difficult toquantify (see Crown IT Servs., Inc. vKoval-Olsen, 11 AD3d 263, 266 [2004]; Willis of N.Y. v DeFelice, 299 AD2dat 242). Accordingly, the Supreme Court properly found that the plaintiff would sufferirreparable harm absent the issuance of a preliminary injunction (see BDO Seidman vHirshberg, 93 NY2d at 396; Chernoff Diamond & Co. v Fitzmaurice, Inc., 234 AD2d200, 203 [1996]).
Finally, the equities in this matter favor the plaintiff.
Accordingly, a preliminary injunction was properly issued by the Supreme Court. Santucci,J.P., Skelos, Covello and Carni, JJ., concur.