Opinion
December 10, 1976
Appeal from the Onondaga Supreme Court.
Present — Marsh, P.J., Moule, Cardamone, Simons and Goldman, JJ.
Judgment unanimously affirmed, with costs, Simons, J., not participating. Memorandum: Plaintiffs appeal from that part of the judgment which dismissed their complaint against all of the defendants. The Trial Justice, Roy, J., in his thorough and detailed decision has fully recited and analyzed the evidence. We concur with his findings and add a brief statement of the applicable law. Plaintiffs' complaint charged that defendants Lay and Bruntrager violated the duty of honest and fair dealing which they as employees owed their employers, the plaintiffs. It is well settled that an employee "is prohibited from acting in any manner inconsistent with his agency or trust and is at all times bound to exercise the utmost good faith and loyalty in the performance of his duties" (Lamdin v Broadway Surface Adv. Corp., 272 N.Y. 133, 138; see, also, Jones Co. v Burke, 306 N.Y. 172; Bruno Co. v Friedberg, 21 A.D.2d 336, mod on other grounds 28 A.D.2d 91, affd 23 N.Y.2d 798; Defler Corp. v Kleeman, 19 A.D.2d 396, app dsmd 13 N.Y.2d 1174). However, "in the absence of an express contract, or a breach of a fiduciary duty, or fraud, an employee who has left his employment will not be restrained from competing with his former employer (Clark Paper Mfg. Co. v. Stenacher, 236 N.Y. 312)" (Anchor Alloys v Non-Ferrous Processing Corp., 39 A.D.2d 504, 507; see, also, Monroe Coverall Serv. v Bosner, 283 App. Div. 451, amd on other grounds 283 App. Div. 998; Washer v Seager, 272 App. Div. 297, affd 297 N.Y. 918; Appollo Stationery Co. v Pilmar, 15 Misc.2d 91, affd 9 A.D.2d 649). We concur with the trial court's finding that the requirement of fair dealing was met and that there was "nothing improper with the formation of a corporation to compete in the marketplace". The trial court also properly found that the plaintiffs had failed to establish that defendants had improperly induced third parties to breach their contractual obligations owed to plaintiffs. There was no fact pattern which showed interference with or destruction of orders legitimately placed with the plaintiffs (cf. Hercules Packing Corp. v Steinbruckner, 28 A.D.2d 635; Bruno Co. v Friedberg, 21 A.D.2d 336, supra). The record supports the trial court's finding that defendants were not guilty of "any disloyal or improper conduct". Plaintiffs' final claim of error is the trial court's conclusion that plaintiffs had failed to establish that the Carrier Corporation account and the machine press were entitled to trade secret protection. "It has been well established that an employee, who has had entrusted to him confidential information pertaining to the conduct and clientele of his employer's business which he would not have obtained were it not for his status as a trusted employee and which affords him an advantage over other competitors to whom the information is not available, may not subsequently use that information to further his own ends [citing cases]" (Defler Corp. v Kleeman, 19 A.D.2d 396, 401, supra). The claim that defendants caused the Carrier specification book to disappear was not supported by proof. The trial court properly concluded that plaintiffs failed to show any culpability on the part of the defendants (see Tepfer Sons v Zschaler, 25 A.D.2d 786, 787). Similarly, plaintiffs' contention that its machine press was entitled to trade secret protection and that defendants' use of a similar machine was improper has no merit. The trial court correctly found that the machine "was not unique" and that others had secured similar machines from the manufacturer of it (see Kaumagraph Co. v Stampagraph Co., 197 App. Div. 66, 77, affd 235 N.Y. 1). Plaintiffs have focused their appeal on the trial court's findings with respect to the sufficiency of proof. The standard of review applicable to these conclusions by the trial court is for our court "not [to] disturb findings based upon conflicting evidence and involving credibility of witnesses unless it is obvious that the [trial] court's conclusion could not be reached by any fair interpretation of the evidence" (Collins v Wilson, 40 A.D.2d 750, 751; see, also, Kelly v Watson Elevator Co., 309 N.Y. 49, 51). Applying this principle the judgment is affirmed.