Opinion
June 7, 1991
Appeal from the Supreme Court, Erie County, Wolfgang, J.
Present — Dillon, P.J., Doerr, Balio, Lawton and Davis, JJ.
Order insofar as appealed from unanimously reversed on the law without costs, cross motion granted in part and complaint dismissed. Memorandum: Supreme Court erred by denying defendants' cross motion for summary judgment dismissing the complaint. We have recently stated that non-competition clauses such as those contained in the employment contracts that plaintiff entered into with defendants, Michael Hoeltke and Greg Nolte, are "disfavored by the law" (Buffalo Imprints v Scinta, 144 A.D.2d 1025, 1026; see also, Newco Waste Sys. v Swartzenberg, 125 A.D.2d 1004, 1005). Such restrictive covenants will not be enforced "unless necessary to protect the trade secrets, customer lists or good will of the employer's business, or perhaps when the employer is exposed to special harm because of the unique nature of the employee's services" (American Broadcasting Cos. v Wolf, 52 N.Y.2d 394, 403; Buffalo Imprints v Scinta, supra, at 1026; Kraft Agency v Delmonico, 110 A.D.2d 177, 182). Moreover, where an employer's customer lists "are readily ascertainable from sources outside its business, trade secret protection will not attach and their solicitation by the employee will not be enjoined" (Columbia Ribbon Carbon Mfg. Co. v A-1-A Corp., 42 N.Y.2d 496, 499; Buffalo Imprints v Scinta, supra, at 1027; Walter Karl, Inc. v Wood, 137 A.D.2d 22, 27).
Application of the above principles to the facts here compels the conclusion that the restrictive covenants are not enforceable because plaintiff's customer lists do not qualify for trade secret protection. The lists are readily ascertainable from a myriad of sources available to the general public. Further, there has been no demonstration that defendants performed services of a unique nature for plaintiff. Although defendants were valuable sales personnel, they were not irreplaceable nor did their leaving plaintiff's employ cause plaintiff special harm (see, Buffalo Imports v Scinta, supra; Newco Waste Sys. v Swartzenberg, supra; see also, Reed, Roberts Assocs. v Strauman, 40 N.Y.2d 303, rearg denied 40 N.Y.2d 918).
Finally, there has been no factual showing that defendants wrongfully converted or misappropriated to their own use any confidential knowledge acquired during their employment with plaintiff or that they breached any fiduciary duty of loyalty that was owed to plaintiff (see, Reed, Roberts Assocs. v Strauman, supra, at 308-309; Computer Task Group v Professional Support, 88 A.D.2d 768, 769). Accordingly, defendants are entitled to summary judgment dismissing the complaint.