Opinion
CA 05-00733.
September 30, 2005.
Appeal from an order of the Supreme Court, Erie County (Joseph G. Makowski, J.), entered August 17, 2004. The order denied defendant's motion for partial summary judgment dismissing the first cause of action.
GROSS, SHUMAN, BRIZDLE GILFILLAN, P.C., BUFFALO (HUGH C. CARLIN OF COUNSEL), FOR DEFENDANT-APPELLANT.
PHILLIPS LYTLE LLP, BUFFALO (EDWARD S. BLOOMBERG OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Before: Hurlbutt, J.P., Scudder, Kehoe, Martoche and Hayes, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously reversed on the law with costs, the motion is granted and the first cause of action is dismissed.
Memorandum: Plaintiff commenced this action seeking, inter alia, to enforce an alleged nonsolicitation covenant contained in a shareholders' agreement between plaintiff and defendant, a former employee, officer, and shareholder of plaintiff. Supreme Court erred in denying defendant's motion for partial summary judgment dismissing the first cause of action of the complaint, alleging the breach of the nonsolicitation covenant. As defendant contends, the restrictive covenant is unenforceable inasmuch as it constitutes a mere agreement to agree ( see Joseph Martin, Jr., Delicatessen v. Schumacher, 52 NY2d 105, 109-110; see also Matter of 166 Mamaroneck Ave. Corp. v. 151 E. Post Rd. Corp., 78 NY2d 88, 91; Prospect Plaza Tenant Assn., Inc. v. New York City Hous. Auth., 11 AD3d 400, 401; General Elec. Co. v. Metals Resources Group, 293 AD2d 417, 419).