| Eastman Kodak Co. v Carmosino |
| 2010 NY Slip Op 06990 [77 AD3d 1434] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| Eastman Kodak Company, Appellant, v Robert Carmosino,Respondent. |
—[*1] Cozen O'Connor, New York City (Mark J. Foley, of the Pennsylvania Bar, admitted pro hac vice,of counsel) and Bilgore, Reich, Levine & Kantor, LLP, Rochester, for defendant-respondent.
Appeal from an order of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), enteredMay 3, 2010. The order denied the motion of plaintiff for injunctive relief.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this action seeking to enforce the restrictive covenantscontained in an employment agreement that defendant signed while he was employed by plaintiff.Approximately four months after plaintiff notified defendant that his position had been eliminated as aresult of a corporate reorganization, defendant began working for Hewlett Packard (HP), a competitorof plaintiff. Plaintiff appeals from an order denying its motion seeking a preliminary injunction enjoiningdefendant from commencing employment with HP.
We conclude that Supreme Court did not abuse its discretion in refusing to issue the preliminaryinjunction. " 'Preliminary injunctive relief is a drastic remedy [that] is not routinely granted' " (Sutherland Global Servs., Inc. v Stuewe, 73AD3d 1473, 1474 [2010]). In order to prevail on a motion for a preliminary injunction, the movingparty has the burden of demonstrating, by clear and convincing evidence, (1) a likelihood of success onthe merits, (2) irreparable injury in the absence of injunctive relief, and (3) a balance of equities in itsfavor (see Nobu Next Door, LLC v FineArts Hous., Inc., 4 NY3d 839 [2005]; Emerald Enters. of Rochester v Chili PlazaAssoc., 237 AD2d 912 [1997]).
In this case, plaintiff failed to demonstrate by clear and convincing evidence that the employmentagreement was enforceable and thus that there was a likelihood of success on the merits. It is wellestablished that agreements by an employee not to compete with his or her employer upon thetermination of employment are judicially disfavored because " 'powerful considerations of public policy. . . militate against sanctioning the loss of a [person's] livelihood' " (Reed, RobertsAssoc. v Strauman, 40 NY2d 303, 307 [1976], rearg denied 40 NY2d 918 [1976];see Columbia Ribbon & Carbon Mfg. [*2]Co. v A-1-ACorp., 42 NY2d 496, 499 [1977]). Thus, "[a] restrictive covenant against a former employee 'willbe enforced only if reasonably limited temporally and geographically . . . , and then only tothe extent necessary to protect the employer from unfair competition [that] stems from the employee'suse or disclosure of trade secrets or confidential customer lists' " (IVI Envtl. v McGovern, 269AD2d 497, 498 [2000], quoting Columbia Ribbon & Carbon Mfg. Co., 42 NY2d at 499; see Riedman Corp. v Gallager, 48 AD3d1188, 1189 [2008]).
Here, plaintiff failed to establish that the information to which defendant was exposed during histenure as plaintiff's "Vice President, Sales, Global and Strategic Accounts" qualifies as a trade secret orthat specific enforcement of the employment agreement is necessary to protect plaintiff's legitimateinterests (see Natural Organics, Inc. vKirkendall, 52 AD3d 488, 489-490 [2008], lv denied 11 NY3d 707 [2008]).Although plaintiff alleged that defendant downloaded confidential company documents after histermination, plaintiff failed to set forth evidence establishing that defendant misappropriated confidentialinformation. Plaintiff also failed to establish that its customer lists, pricing information, and "productroadmaps" constitute trade secrets (see Buhler v Maloney Consulting, 299 AD2d 190, 191[2002]; Briskin v All Seasons Servs., 206 AD2d 906 [1994]; Walter Karl, Inc. vWood, 137 AD2d 22, 27 [1988]). Moreover, "mere knowledge of the intricacies of a business"does not qualify as a trade secret (Marietta Corp. v Fairhurst, 301 AD2d 734, 739 [2003]).
We further conclude that plaintiff failed to establish that irreparable injury would result absentinjunctive relief (see Genesis II Hair Replacement Studio v Vallar, 251 AD2d 1082 [1998])."[B]ecause the non[ ]competition agreement is for a finite period, i.e., 18 months, any loss of salesoccasioned by the allegedly improper conduct of defendant can be calculated. Thus, plaintiff has anadequate remedy in the form of monetary damages, and injunctive relief is both unnecessary andunwarranted" (D&W Diesel v McIntosh, 307 AD2d 750, 751 [2003]). In addition, weconclude that a balance of the equities in this case do not favor granting the preliminary injunction.Defendant was terminated without cause and, even after he was notified of his involuntary termination,he endeavored to remain an employee of plaintiff by applying for one of the new positions created in thereorganization. As the Court of Appeals reasoned in Post v Merrill Lynch, Pierce, Fenner &Smith (48 NY2d 84 [1979], rearg denied 48 NY2d 975 [1979]), a case involving aforfeiture-for-competition clause in a private pension plan, "[a]n employer should not be permitted touse offensively [a noncompetition] clause . . . to economically cripple a former employeeand simultaneously deny other potential employers his [or her] services" (id. at 89).Present—Centra, J.P., Peradotto, Carni, Lindley and Sconiers, JJ.