Opinion
1934703
Decided May 20, 2005.
Upon the foregoing papers, plaintiff Concord Limousine, Inc. (Concord) and third-party defendants Alex Gavrilov (Gavrilov) and Ronald Velocci [Velocci] move, pursuant to CPLR 3212, for an order granting them summary judgment dismissing defendant/third-party plaintiff's counterclaims and third-party claims which allege, inter alia, that she was discriminated against by plaintiff and third-party defendants in her employment on the basis of her sex. Defendants/third-party plaintiff Nora Orezzoli (Orezzoli) and Advantage Advertising Agency, Inc. oppose the instant motion and cross-move, pursuant to CPLR 3212, for an order granting them summary judgment dismissing plaintiff's complaint and granting judgment in favor of Orezzoli on Orezzoli's counterclaim against Concord for breach of its agreement to pay Orezzoli severance pay.
Motion for Summary Judgment By Plaintiff and Third-Party Defendants Under New York law, summary judgment should only be granted where there are no triable issues of fact ( Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404). In order to prevail on a motion for summary judgment, the movant must present a prima facie case demonstrating entitlement to judgment as a matter of law (Prince v. Di Benedetto, 189 AD2d 757, 759; Zarr v. Piccio, 180 AD2d 734, 735). Once the movant has established its prima facie case entitling it to summary judgment as a matter of law, the party opposing a motion for summary judgment bears the burden of "produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact . . . mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient" ( Zuckerman v. City of New York, 49 NY2d 557, 562; see also Romano v. St. Vincent's Medical Center of Richmond, 178 AD2d 467, 470; Tessier v. New York City Health Hospitals Corp., 177 AD2d 626). The evidence presented on summary judgment must be scrutinized in the light most favorable to the party opposing the motion ( Goldstein v. Monroe County, 77 AD2d 232, 236).
As for the substantive discrimination claim, it is well established that "[t]he standards for recovery under section 296 of the Executive Law are in accord with Federal standards under title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000 et seq.)" ( Ferrante v. American Lung Ass'n, 90 NY2d 623, 629; accord Forrest v. Jewish Guild for the Blind, 309 AD2d 546, aff'd 3 NY2d 295 ["the standard for recovery under section 296 of the Executive Law is in accord with the federal standards under Title VII and the human rights provisions of New York City's Administrative Code mirror the provisions of the Executive Law"] [citations omitted]).
Further, "on a claim of discrimination, plaintiff has the initial burden to prove by a preponderance of the evidence a prima facie case of discrimination" ( Ferrante, 90 NY2d at 629). "To meet this burden, plaintiff must show that: (1) she is a member of a protected class; (2) she was qualified to hold the position; (3) she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination" ( Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 305; see also McDonnell Douglas Corp. v. Green, 411 U.S. 792). The employer can rebut plaintiff's prima facie case, however, by "clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision" ( Matter of Miller Brewing Co. v. State Div. of Human Rights, 66 NY2d 937, 938). Despite the employer's rebuttal of the presumption of discrimination, "plaintiff is still entitled to prove that the legitimate reasons proffered by [the employer] were merely a pretext for discrimination" ( Ferrante, 90 NY2d at 629). Accordingly, "to prevail on their summary judgment motion, defendants must demonstrate either plaintiff's failure to establish every element of intentional discrimination or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual" ( Forrest, 3 NY2d at 305).
A plaintiff can establish a claim that he or she suffered discriminatory treatment in the workplace through proof that he or she has been subjected to a hostile work environment. To state a discrimination claim based upon a hostile work environment, the plaintiff must allege that his or her workplace was "permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment" ( Harris v. Forklift Sys., 510 US 17, 21 [internal quotation marks and citations omitted]). "Unless the alleged conduct is extraordinarily severe, isolated remarks or occasional episodes of harassment will not merit relief" ( Constantine v. Kay, 6 Misc 3d 927). In determining whether a workplace is hostile, courts must consider "'the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance'" (Quince v. Green Tree Credit Corp., 159 F3d 759, 767-768, quoting Harris, 510 US at 17). The discriminatory conduct at issue, therefore, "must be more than episodic; [rather, it] must be sufficiently continuous and concerted in order to be deemed pervasive" ( Perry v. Ethan Allen, Inc. 115 F3d 143, 149. Accordingly, "mere personality conflicts must not be mistaken for unlawful discrimination, lest the antidiscrimination laws become a general civility code" ( Forrest, 3 NY3d at 310 [citations omitted]).
In the instant action, Orezzolli asserts counterclaims and third-party claims for quid pro quo sexual harassment, hostile workplace discrimination, discriminatory retaliation and intentional infliction of emotional distress. Orrezzoli avers, in an affidavit submitted in opposition to the instant motion for summary judgment brought by plaintiff and third-party defendants, that she was employed as a sales representative for Concord from April 1995 to March 2003. Orezzoli alleges that on her first day of employment, Velocci, the Sales Manager for Concord, told her that "this is a real tough industry. It might be hard for you because you are very beautiful."
Orezzoli claims that in 1999, and continuing throughout her employment, Velocci directed repeated sexual comments and advances toward her. On numerous occasions Velocci allegedly told plaintiff that he was "great in bed" and that Orezzoli "would not have to do anything," which Orezzoli understood as an insinuation that he would perform oral sex on her. On repeated occasions, Velocci asked Orezzoli to look at his computer screen which contained pornographiic images. Also on repeated occasions, when Orezzoli was in Velocci's presence, Velocci would touch his genitals (over his pants). This allegedly occurred both in a motor vehicle and in Velocci's office. Velocci also allegedly told Orezzoli on numerous occasions that he "had a perfect dick" and asked her if she wanted to see it, indicating that he would unzip his pants. On repeated occasions Velocci said to Orrezzoli "let's get a hotel room and have sex." Velocci also allegedly repeatedly asked Orezzoli "how do you groom down there, it is wall-to-wall or is it a mohawk, do you shave or do you wax" in reference to Orezzoli's pubic hair. When Orezzoli would rebuff Velocci's advances, Velocci would state that Orezzoli was not interested in responding to his advances because she was a lesbian.
Orezzoli avers that such comments were made in a number of locations, including in Velocci's office, in Orrezzoli's office, and in the car that Velocci and Orezzoli used to travel to and from customer meetings. Orezzoli states that there were no other witnesses to Velocci's conduct.
Orezzoli alleges that in or about December 2000, Velocci engaged in harassing conduct of a physical nature. Orezzoli avers that while she and Velocci were standing in the 3d floor hallway of the Concord building located at 700 Third Avenue that Velocci leaned toward Orezzoli as if he was going to hug her but instead grabbed her buttocks.
In March 2003, Velocci allegedly asked Orezzoli "what's up with you and me. Why don't you just let me go down on you?" Orezzoli asked him to stop and informed him that nothing was ever going to happen between them. Velocci allegedly responded to this by saying, "oh come on, just once. You don't have to do anything. I'll do everything. Nobody will find out." Orezzoli responded by informing Velocci that she didn't know what else to do because she had told him before to stop such comments and behavior and that she was going to tell Gavrilov about the incidents.
Orezzoli maintains that on each and every occasion that Velocci made sexually suggestive or harassing comments to her or engaged in harassing conduct she told Velocci to stop engaging in such behavior. She claims that in or about December 1999 and January 2000 she told Gavrilov that Velocci was making her uncomfortable by making increasingly graphic and vulgar comments. Gavrilov allegedly responded to Orezzoli's complaint by saying "are you married? Why don't you just give it a shot?" When Orezzoli stated that she was not interested, Gavrilov started asking Orezzoli what kind of men she liked. Orezzoli informed Gavrilov that she did not want to discuss such a topic with him.
Orezzoli also alleges that she informed Gavrilov about the incident during which Velocci had grabbed her buttocks. In response, Gavrilov asked her if anyone else was there and she said "no." He told Orezzoli that he would look into it. A short time later, in response to Orezzoli's inquiry as to what had happened with regard to said incident, Gavrilov allegedly responded by saying "stop making so many problems, stop being an emotional female." In or about June and July of 2001 and July and August of 2002, Orezzoli again complained to Gavrilov concerning Velocci's harassing behavior. Gavrilov allegedly responded to such complaints dismissively and stated that he would see what he could do. Orezzoli claims that a day or two before she was fired in March 2003 she verbally complained to Gavrilov about sexually harassing comments that were made to her by Velocci.
The court finds that there are triable issues of fact with regard to Orezzoli's discrimination claims based upon hostile work environment and retaliation which preclude the grant of summary judgment to third-party defendants. Orezzoli has alleged the existence of numerous incidents where Velocci directed sexually explicit comments toward her, many of which concerned actual requests that Orezzoli engage in sexual activity with him. Moreover, Orezzoli also alleges that Velocci would regularly touch his genital area in front of her, on one occasion grabbed her buttocks and also regularly showed her pornographic material on his computer screen. Such allegations raise a question of fact with regard to the both the offensiveness and pervasiveness of Velocci's alleged sexually harassing conduct. It is well settled that an evaluation of the offensiveness and pervasiveness of allegedly sexually harassing conduct should generally be conducted by the trier of fact ( see Gallagher v. Delaney, 139 F3d 338 [2d Cir 1998] [finding that summary judgment was inappropriate in sexual harassment case because jury was in a better position to assess, based on "real life" experience, "the subtle sexual dynamics of the workplace based on nuances, subtle perceptions and implicit communications" and was therefore in a superior position to determine whether the employer's conduct constituted sexual harassment under the totality of the circumstances]; Dilaurenzio v. Atlantic Paratrans, Inc., 926 F Supp 310 [ED NY 1996] [finding that the pervasiveness of harassing conduct "is the sort of issue that is often not susceptible to summary resolution"]).
The arguments proffered by plaintiff and third-party defendants in support of their motion for summary judgment largely consist of attacks on the credibility of Orezzoli's claims. Such credibility issues, however, are to be decided by the trier of fact and not the court. Additionally, third-party defendants contend that Orezzoli has not demonstrated that she was tangibly injured by the alleged hostile environment. Under a hostile enviroment theory, however, employer liability attaches when the sexual harassment has "the purpose of unreasonably interfering with an individual's work performance or creating an intimidating, hostile or offensive working environment" ( Christoforou v. Ryder Truck Rental, Inc., 668 F Supp 294, 301 [emphasis added]). Accordingly, because antidiscrimination law affords employees the right to work in an environment free from discriminatory intimidation, ridicule or insult, relief in hostile workplace actions is not limited to economic or tangible injury ( see Meritor Savings Bank v. Vinson, 477 U.S. 64, 65; Rivera v. Prudential Ins. Co., 1996 WL 637555 [ND NY 1996]); Danna v. New York Telephone Co., 752 F Supp 594, 611 [SD NY1990]; McIntyre v. Manhattan Ford, Lincoln-Mercury, Inc., 175 Misc 2d 795, lv dismissed 256 AD2d 269, lv denied 94 NY2d 753).
Defendants also contend that Velocci was not Orezzoli's direct supervisor and that "there is nothing to indicate that Concord and Gavrilov encouraged, condoned, approved of or even knew about the alleged discriminatory conduct." An employer is liable for a hostile work environment created by its employees if the employer acquiesced in the discriminatory conduct complained of by the employee who was allegedly subjected to such environment ( see State Division of Human Rights v. St. Elizabeth's Hospital, 66 NY2d 684). Condonation may be demonstrated by knowledge of the discriminatory conduct combined with insufficient investigation and/or inadequate corrective action ( see Father Belle Community Center v. State Division of Human Rights, 221 AD2d 44, lv denied 89 NY2d 809). In the instant case, Orezzoli alleges that she complained to Gavrilov, her employer, with regard to Velocci's sexually harassing conduct on several occasions and that nothing was done in response to her complaints. Mere denials that such complaints were made, or conclusory allegations concerning Orezzoli's credibility, are insufficient to negate the triable issues of fact raised by Orezzoli concerning the complaints she made to her employer related to Velocci's allegedly sexually harassing conduct. Finally, although third-party defendants also contend that Orezzoli was an independent contractor, and not an employee, and accordingly her discrimination claims must fail, the court finds that issues of fact exist concerning Orezzoli's tax status, the incorporation of her company, Advantage Advertising Agency, Inc., and the terms of her compensation which preclude a determination as to her employment status on a motion for summary judgment. Accordingly, Orezzoli has raised triable issues of fact with regard to her hostile workplace environment claim.
Triable issues of fact also exist with regard to Orezzoli's discriminatory retaliation claim. In order to establish a claim of retaliatory discrimination:
"plaintiff must show that (1) she has engaged in protected activity, (2) her employer was aware that she participated in such activity, (3) she suffered an adverse employment action based upon her activity, and (4) there is a causal connection between the protected activity and the adverse action."
( Forrest, 3 NY3d at 313-314; accord Hughes v. Derwinski, 967 F2d 1168, 1174).
The causal connection needed for proof of a retaliation claim "can be established indirectly by showing that the protected activity was closely followed in time by the adverse action" ( Cifra v. GE, 252 F3d 205, 217 [internal quotation marks and citations omitted]; accord Feingold v. New York, 366 F3d 138, 156-157 [proof of the causal connection can be established indirectly by showing that the protected activity was closely followed in time by the adverse action]). It has also been recognized, however, that "[a]s a matter of law, 'the mere fact that the incidents of which a plaintiff complains occurred after . . . grievances were filed does not create an issue of fact as to causality'" ( Feliciano v. Alpha Sector, 2002 WL 1492139 [internal quotation marks and citations omitted]; see generally Slattery v. Swiss Reinsurance Am., 248 F3d 87, 95, cert denied 534 US 951 (2001) [although it is true that temporal proximity can demonstrate a causal nexus necessary to establish retaliatory discrimination, an inference of retaliation did not arise where the adverse employment actions complained of were the ultimate product of an extensive period of progressive discipline which began five months prior to plaintiff's filing of the EEOC charges, so that the gradual adverse job actions began well before the plaintiff had ever engaged in any protected activity]; Hughes, 967 F2d 1168, 1174-1175 [plaintiff failed to establish a causal connection between the protected expression and the adverse action by showing that the issuance of the two disciplinary letters closely followed his formal discrimination complaint, since four months elapsed between plaintiff's filing and his receipt of the first disciplinary letter and that more than three years passed between the date of his filing of his discrimination complaint and his receipt of the second disciplinary letter]). Indeed, it has been noted that "[t]he cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be 'very close'" ( Boise v. New York University, 2003 WL 22390792, citing Clark Co. Sch. Dist. v. Breeden, 532 US 268, 273-74, citing Richmond v. ONEOK, 120 F3d 205, 209 [holding three-month period insufficient to establish causal connection], and Hughes, 967 F2d at 1174-75 [four-month period insufficient]).
Here, Orezzoli has proffered evidence that she complained to Gavrilov with regard to Velocci's sexually harassing conduct, and that one or two days after making such complaint, she was terminated from her employment. Although plaintiff and third-party defendants have presented evidence that she was terminated for poor work performance, such as, inter alia, engaging in dishonest practices with regard to obtaining clients and lateness to important meetings, Orezzolli has also presented evidence that such alleged work performance deficiencies were minimal, sporadic and/or remote in time from her actual termination date. Accordingly, given the existence of multiple questions of fact with regard to Orezzolli's retaliation claim, such claim is not subject to summary dismissal.
Plaintiff and third-party defendants are entitled, however, to summary judgment dismissing Orezzoli's sex discrimination claim to the extent that such a claim is premised upon quid pro quo sexual harassment as opposed to hostile workplace. "The burden is initially placed upon a complainant to establish a prima facie case [of quid pro quo sexual harassment] by showing that she was subjected to unwelcome sexual conduct, and that the reaction to that conduct was then used as the basis for decisions affecting her compensation, terms, conditions or privileges of her employment" ( Matter of Bartle v. Mercado, 235 AD2d 651, 653, lv denied 89 NY 815). "The issue in a quid pro quo case is whether the supervisor has expressely or tacitly linked tangible job benefits to the acceptance or rejection of sexual advances; a quid pro quo claim is made out whether the employee rejects the advances and suffers the consequences or submits to the advances in order to avoid those consequences" ( Father Belle, 221 AD2d at 50). Here, although Gavrilov allegedly largely ignored plaintiff's complaints concerning Velocci and even, on one occasion, suggested that she "should give it a try" in response to her complaint that Velocci had made sexual advances toward her, Oezzoli has submitted insufficient evidence to suggest that her acceptance or rejection of Velocci's advances was ever expressly or tacitly linked to tangible job benefits or that she perceived them as being so linked. Moreover, Orezzoli alleges that she was terminated as retaliation for protected activity, namely complaining to Gavrilov about Velocci's sexually harassing conduct, and not due to her rejection of Velocci's sexual advances. Accordingly, as Orezzoli has failed to establish a prima facie case of quid pro quo sexual harassment, plaintiff and third-party defendants are entitled to summary judgment dismissing that claim.
Third-party defendants are also entitled to summary judgment dismissing Orezzoli's intentional infliction of emotional distress claim. A claim for intentional infliction of emotional distress must be premised upon conduct by defendant that is so "extreme and outrageous" as to "go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community" ( Murphy v. American Home Prods. Corp., 58 NY2d 293). In the instant case, although the conduct alleged qualifies as offensive and harassing, the court finds that such conduct cannot be deemed so outrageous as to go beyond all possible bounds of decency. Accordingly, that portion of third-party defendants' motion for summary judgment seeking dismissal of Orezzoli's claim for intentional infliction of emotional distress is granted.
Orrezolli's Motion for Summary Judgment
Orezzolli has also moved for summary judgment dismissing Concord's complaint. In its complaint Concord seeks enforcement of a restrictive employment agreement executed by Orezzoli and asserts related claims based upon the alleged unfair competition by Orezzoli. Orezzoli worked for Concord as a salesperson until March 20, 2003. Concord provides vehicular transportation for individuals and companies in the New York metropolitan area as part of what is known as the "Black Car" industry. Companies operating within the "Black Car" industry generally service Fortune 500 companies and other prominent businesses.
In an affidavit submitted in support of her instant motion for summary judgment, Orezzoli states that while she was employed by Concord, her duties included finding new customers for Concord and providing sales services to such customers. Orezzoli claims that substantially all of the customers, for which she provided services, were brought to Concord by her own efforts. Orezzoli states that she purchased the New York Job Bank Book with her own money to assist her in locating potential customers. This resource lists Fortune 500 companies by industry and includes addresses, phone numbers and human resource contacts. Orezzoli also used other public sources such as general telephone directories, business magazines and the Internet to access the names and addresses of potential clients. Orezzoli allegedly obtained many of her contacts at these companies through "cold calling" the companies and asking for the department or person in charge of handling car service arrangements. In addition, Orezzoli maintains that many of the companies which utilized Concord's services also retained a number of different car service vendors other than Concord for their transportation needs.
In or about February 2002, Orezzoli signed a restrictive employment agreement as part of an employment contract with Concord. The restrictive covenant provided, in relevant part, that:
(a) Representative does expressly covenant and agree that during the term of her employment and for a period of three years immediately following the termination of her employment, she will not, within the territory defined below, directly or indirectly, for herself or on behalf of others, as an individual on her own account, or as an employee, agent, or representative for any partnership, firm or corporation:
(1) Solicit orders for vehicular transportation to any institutional, industrial, commercial or governmental consumers.
(2) Contact, for the purpose of diverting their business, any of the customers or accounts of the company as described in Paragraph (a) of this section. The company accounts are attached.
(3) Own, manage, control, operate, be employed or work for in any capacity or participate in the ownership, management, or control, or engage as a sales representative or sales executive, of any business which engages in any phase of the business described in Paragraph (a) of this section.
(b) The territory referred to in this section shall include: New York City in New York State including its five counties and to work for Edward Slinim or any of his companies or affiliated or subsidiary or related companies such as NYC Two Way Radio International.
(c) Notwithstanding anything to the contrary in this agreement, the restrictive covenant in this section shall not be deemed to apply to any area or extraterritorial accounts for a period of more than three years from the date on which such ceased to be assigned to representative.
(d) Each restrictive covenant set forth is separate and distinct from any other restrictive covenant set forth in this section. In the event of the invalidity of any covenant, the remaining obligations shall be deemed independent and divisible. The parties agree that the inclusion of all the territories described is reasonable and necessary for the protection of company.
(e) Representative agrees that during the period of her employment and for three years thereafter, she will not use, give or divulge to any person anywhere who is not then an authorized employee of the company, any trade secrets, lists of customers, price lists or other specialized information or data learned, acquired or coming to her knowledge while in the employ of company.
Orezzoli claims that she was told that she was required to sign the restrictive agreement. On March 20, 2003, she was terminated from her employment with Concord and was told that the reason for such termination was that the company was not doing well financially. She was told by a representative of Concord that she was to receive a severance package consisting of six months salary and commissions which she did not receive until five weeks after she was terminated.
After she was discharged from Concord, Orezzoli worked briefly for a vending company before commencing employment with Corporate Transportation Group, Inc. ("Corporate Transportation"), a company affiliated with Edward Slinim (a person specifically named in the restrictive employment covenant) and one of Concord's competitors.
"It is well established that restrictive covenants contained in employment contracts that tend to prevent an employee from pursuing a similar vocation after termination of employment are disfavored in the law" ( Skaggs-Walsh v. Chmiel, 224 AD2d 680, 681; see also Marietta Corp. v. Fairhurst, 301 AD2d 734 ;Trans-Continental Credit Collection Co., v. Foti, 270 AD2d 250 ; H R Recruiters, Inc. v. Kirkpatrick, 243 AD2d 680, 681; U.S. Transp. Systs., Inc., v Marc 1 of New York, Inc., 210 AD2d 316 [1994]; Shannon Stables Holding Co., Ltd. v. Bacon, 135 AD2d 804, 805-806). Accordingly, such covenants "'will be enforced only if reasonably limited temporally and geographically . . . and then only to the extent necessary to protect the employer from unfair competition which stems from the employee's use or disclosure of trade secrets or confidential customer information,' or if the employee's services are unique or extraordinary" ( Family Affairs Haircutters v. Detling, 110 AD2d 745, 748, quoting Columbia Ribbon Carbon Manufacturing Co. v. A-I-A Corp., 42 NY2d 496, 499; see also Buhler v. Michael P. Maloney Consulting, Inc., 299 AD2d 190 ; Stiepleman Coverage Corp. v. Raifman, 258 AD2d 515 ; IVI Environmental, Inc. v. McGovern, 269 AD2d 497, 498; U.S. Transp. Systs., Inc., 210 AD2d at 316; H R Recruiters, Inc., 243 AD2d at 681; Skaggs-Walsh, 224 AD2d at 681); Contempo Communications, Inc. v. MJM Creative Servs., Inc., 182 AD2d 351).
Given the strong policy against the enforcement of such covenants, the plaintiff must clearly establish that his or her former employee misappropriated trade secrets or confidential customer lists or provided services to plaintiff that were unique or extraordinary, even where a restrictive employment covenant is reasonable in geographic scope and duration ( see Shannon Stables Holding Co, Ltd., 135 AD2d at 806; see also Investor Access Corp. v. Doremus Co., Inc., 186 AD2d 401, 403, lv denied 81 NY2d 706; cf. Greenwich Mills Co. v. Barrie House Coffee Co., Inc., 91 AD2d 398, 403).
In order to demonstrate that a former employee performed unique or extraordinary services for plaintiff, the plaintiff must show that the employee was irreplaceable and that the employee's departure caused some special harm to plaintiff ( see Ken J. Pezrow Corp. v. Seifert, 197 AD2d 856, 857; see also Albany Medical College v. Lobel, 296 AD2d 701, 702). The employee's services must be "truly special, unique or extraordinary, and not merely of high value to his or her employer" ( H R Recruiters, Inc., 243 AD2d at 681; see also Ken J. Pezrow Corp., 197 AD2d at 857).
With regard to the alleged use of confidential customer lists by a former employee, a restrictive employment covenant will not be enforced unless the plaintiff can demonstrate that the information contained in the lists was not readily available through other sources ( see Ken J. Pezrow Corp., 197 AD2d at 857). Moreover, the solicitation of plaintiff's clients by a former employee is not actionable "unless the customer list could be considered a trade secret or there was wrongful conduct by the employee such as physically taking or copying the employer's files or using confidential information" ( Amana Express Intl., Inc. v. Pier-Air Intl., Ltd., 211 AD2d 606, 607; see also JAD Corp. of America v. Lewis, 305 AD2d 545 [since information sought to be protected by restrictive covenant was "readily available from publicly-available sources," restrictive covenant was not enforceable]; Marietta Corp., 301 AD2d at 734 ["[T]he solicitation of former customers" does not support the enforcement of a restrictive employment covenant "unless the customer list itself would be considered a trade secret"]; Buhler,, 299 AD2d at 191 [contact list prepared by former employee was "based on her knowledge of the financial services industry and on information that was publicly available" and did not support enforcement of the subject restrictive employment covenant]; IVI Environmental, Inc., 269 AD2d at 498; HR Recruiters, Inc., 243 AD2d at 681; WMW Machinery Co., Inc. v. Koerber AG., 240 AD2d 400, 402). Additionally, former employees are entitled to utilize their recollection of information concerning the particular business needs and habits of customers, and such recollected information is not construed as confidential for purposes of enforcing restrictive employment covenants ( see Buhler, 299 AD2d at 191 ["It is well settled that an employee's recollection of information pertaining to the needs and habits of particular customers is not actionable"]; Investor Access Corp., 186 AD2d at 404 [same]; Price Paper and Twine Co., 182 AD2d 748, 750 [same]; Walter Karl. Inc. v. Wood, 137 AD2d 22, 27 [same]).
In some limited cases, however, the potential adverse effects of a close relationship between an employee and an employer's customers are sufficient to support the enforcement of a restrictive employment covenant. "An employer has sufficient interest in retaining present customers to support an employee covenant where the employee's relationship with the customers is such that there is a substantial risk that the employee may be able to divert all or part of the business" ( Serv. Syst. Corp. v. Harris, 41 AD2d 20, 23-24; see also Scott, Stackrow Co. v. Skarina, 9 AD3d 805, lv denied 3 NY3d 612 ["An anticompetitive covenant may prevent the competitive use of client relationships that the employer assisted the employee in developing through the employee's performance of services in the course of employment"]). "The risk to an employer reaches a maximum in situations in which the employee must work closely with the client or customer over a long period of time, especially when his services are a significant part of the total transaction" ( BDO Seidman v. Hirschberg, 93 NY2d 382, 392 [partial enforcement of employment covenant warranted where accountant acquired substantial relationships with clients to whom he provided accounting services] [internal quotation marks and citation omitted]). A close relationship between an employee and an employer's customer, without more, is not enough, however, to invoke the protections of a restrictive employment covenant, as "it is well settled that an employee's recollection of information pertaining to specific needs and business habits of particular customers is not confidential" ( Investor Access Corp., 186 AD2d at 404 [internal quotation marks and citations omitted]). Accordingly, the enforcement of such covenants on the basis of a close business relationship between the employee and the employer's customers is generally limited to instances where the defendant rendered specific substantive services of a confidential nature to the employer's customers ( see e.g. BDO Seidman, 186 AD2d at 404 [accountant]; Chernoff Diamond Co. v. Fitzmaurice, Inc., 234 AD2d 200, 202-203 [defendant acted as a "trusted professional [insurance] advisor" and gained "invaluable and otherwise unobtainable information concerning the insurance needs and business practices [of customers] due to his position"]), as opposed to acting in a general business liaison, investment relations or sales position that did not involve the acquisition or use of trade secrets or other confidential information in regard to either the customer or employer ( see e.g. Investor Access Corp., 186 AD2d at 401 [public relations and investor relations professional]; Karl, 137 AD2d at 24 [executive vice-president of sales]). Moreover, where the employee's solicitation of a customer does not implicate confidential information and is not otherwise improper, a customer's decision to discontinue utilizing the services of the former employer and instead to "avail [itself] of [the employee's] services . . . based upon the [employee's] personal familiarity with and knowledge of their needs as well as [the employee's] outstanding ability in the field" does not support the enforcement of a restrictive employment covenant ( Karl, 137 AD2d at 28).
Concord has failed to raise any triable issues of fact in opposition to Orezzoli's motion for summary judgment. As an initial matter, Concord's opposition does not include an affidavit of anyone with personal knowledge of the of the facts ( see e.g. Capelin Assocs. v. Globe Mfg. Corp., 34 NY2d 338, 342 1974 [opposition to summary judgment adequately supported where "opposing affidavit . . . is being made by one having personal knowledge of the facts"]). It is axiomatic that the affidavit of counsel alone, unsupported by any documentary or testimonial evidence, is of no probative value in opposing a motion for summary judgment ( see Hasbrouck v. City of Gloversville, 102 AD2d 905, aff'd 63 NY2d 916; Farragut Gardens No. 5 v. Milrot, 23 AD2d 889). Rather than identify any triable factual issues, however, Concord argues, in effect, that summary judgment is premature as Orezzoli has not yet been deposed. Although Concord maintains that further discovery is needed, it has failed to identify any specific material and relevant facts which would be gleaned through such additional discovery ( see Campbell v. City of New York, 220 AD2d 476 [finding that the mere hope that evidence to defeat the summary judgment motion may be revealed upon further discovery is not enough to forestall summary judgment; rather, the information sought from additional discovery must be clearly specified and relevant to the issues raised in the motion]; see also Smith v. Fishkill Health-Related Center, Inc., 169 AD2d 309, 316, [1991] lv denied 78 NY2d 864 [Speculation or surmise that material information will be revealed upon further discovery will not suffice as a ground to deny a motion for summary judgment]).
Moreover, Concord does not provide any evidence that Orezzoli's sales role at Concord was any different from that of any other salesperson operating in the "Black Car" industry, or that it was unique or extraordinary in comparison to any other salesperson employed at Concord. Nor is there any evidence that Orezzoli is irreplaceable. Moreover, Orezzoli has proffered evidence that most of Concord's customers are Fortune 500 companies and that information about those customers is readily available from a variety of public sources. Rather than contradicting this fact, deposition testimony adduced from the principals, and other employees, of Concord instead further supports a finding that such information was public, easily obtainable and widely available. Although Concord paid Orezzoli a salary to maintain and develop its client base, there is no evidence that Orezzoli developed confidential and unique relationships with any of these clients which was furthered or developed through the efforts and investment of Concord. Moreover, to the extent that Orezzoli merely has used her knowledge of client needs and preferences to solicit clients, a fact which, in any event, has not been established through admissible evidence, the court notes that a customer's decision to discontinue utilizing the services of the former employer and instead to "avail [itself] of [the employee's] services . . . based upon the [employee's] personal familiarity with and knowledge of their needs as well as [the employee's] outstanding ability in the field" does not support the enforcement of a restrictive employment covenant ( Karl, 137 AD2d at 28). The court is mindful that "the courts must . . . recognize the legitimate interest an employer has in safeguarding that which has made his business successful and to protect himself against deliberate surreptitious commercial piracy" ( Reed Roberts Assocs., Inc. v. Strauman, 40 NY2d 303, 306). However, in the absence of any triable issues of fact concerning whether Orrezzoli misappropriated trade secrets or confidential customer lists, or engaged in other unfair trade practices, provided extraordinary or unique services to her former employer, or established longstanding, confidential relationships providing substantive services to her former employer's clients such that there is a substantial danger that all or part of the former employer's business will be diverted, this court is constrained to grant Orrezoli's motion for summary judgment.
However, that portion of Orezzoli's complaint motion which seeks summary judgment on her claim that she was not provided with her severance pay in a timely fashion by Concord is denied. Issues of fact concerning the severance agreement, the eventual provision of the severance payments and the damages actually accrued by plaintiff, if any, preclude the grant of summary judgment to plaintiff as to this claim.
In summary, third-party defendants' motion for summary judgment is denied in part and granted in part in accordance with the instant decision. Orezzoli's motion for summary judgment dismissing the complaint is granted in its entirety.
The foregoing constitutes the decision, order and judgment of the court.