| Sutherland Global Servs., Inc. v Stuewe |
| 2010 NY Slip Op 04020 [73 AD3d 1473] |
| May 7, 2010 |
| Appellate Division, Fourth Department |
| Sutherland Global Services, Inc., Respondent, v Thomas Stuewe,Appellant. |
—[*1] Woods Oviatt Gilman LLP, Rochester (Warren B. Rosenbaum of counsel), forplaintiff-respondent.
Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), enteredNovember 5, 2009. The order granted plaintiff's motion for a preliminary injunction.
It is hereby ordered that the order so appealed from is unanimously reversed on the lawwithout costs, the motion is denied and the preliminary injunction is vacated.
Memorandum: Plaintiff commenced this action seeking to enforce the restrictive covenantscontained in a "Non-Competition and Non-Solicitation Agreement" (Agreement) that defendantsigned while he was employed by plaintiff. Defendant appeals from an order granting the motionof plaintiff seeking a preliminary injunction enjoining defendant from, inter alia, acceptingemployment from plaintiff's alleged competitors.
We agree with defendant that Supreme Court abused its discretion in issuing the preliminaryinjunction. "Preliminary injunctive relief is a drastic remedy [that] is not routinely granted"(Marietta Corp. v Fairhurst, 301 AD2d 734, 736 [2003]; see Peterson v Corbin,275 AD2d 35, 37 [2000], appeal dismissed 95 NY2d 919 [2000]; Cool InsuringAgency v Rogers, 125 AD2d 758, 759 [1986], appeal dismissed 69 NY2d 1037[1987]). "In order to establish its entitlement to a preliminary injunction, the party seeking theinjunction must establish, by clear and convincing evidence . . . , three separateelements[, including,] . . . '. . . a likelihood of ultimate success on themerits' " (Destiny USA Holdings, LLCv Citigroup Global Mkts. Realty Corp., 69 AD3d 212, 216 [2009], quoting Doe vAxelrod, 73 NY2d 748, 750 [1988]; see Aetna Ins. Co. v Capasso, 75 NY2d 860,862 [1990]; J. A. Preston Corp. v Fabrication Enters., 68 NY2d 397, 406 [1986]).
Here, we agree with defendant that plaintiff failed to demonstrate by clear and convincingevidence that the Agreement was enforceable and thus that there was a likelihood of success onthe merits. "While restrictive covenants tending to prevent an employee from pursuing a similarvocation after termination of employment are, as a general rule, disfavored by the courts, theywill be enforced if [*2]they are[, inter alia,] . . .necessary to protect the employer's legitimate interests" (Asness v Nelson, 273 AD2d165 [2000]; see BDO Seidman v Hirshberg, 93 NY2d 382, 388-389 [1999];Columbia Ribbon & Carbon Mfg. Co. v A-1-A Corp., 42 NY2d 496, 499 [1977]). Weagree with defendant that plaintiff failed to demonstrate the need for an injunction to protect itslegitimate interests, which are "limited to the protection of [its] trade secrets or confidentialcustomer lists, or protection from an employee whose services are unique or extraordinary" (Riedman Corp. v Gallager, 48 AD3d1188, 1189 [2008]; see BDO Seidman, 93 NY2d at 389; Reed, Roberts Assoc. vStrauman, 40 NY2d 303, 308 [1976], rearg denied 40 NY2d 918 [1976]). Wetherefore reverse the order, deny the motion and vacate the preliminary injunction.Present—Smith, J.P., Carni, Sconiers and Pine, JJ.