Opinion
Index No. 607833/2020 Motion Sequence Nos. 001-MD 002-MD 003-MD
05-26-2021
CARRIER COMMUNICATIONS CORP., d/b/a MULTI-MEDIA COMMUNICATIONS, Plaintiff, v. CHRISTOPHER MOLLISH, JR., Defendant.
COREY STARK PLLC Attorney for Plaintiff QUATELA CHIMERI PLLC Attorney for Defendant
Unpublished Opinion
MOTION DATES: 7/15/20, 8/7/20, 10/1/20
ADJOURNED DATE: 10/16/20
COREY STARK PLLC Attorney for Plaintiff
QUATELA CHIMERI PLLC Attorney for Defendant
PRESENT: Hon. ANDREW A. CRECCA Justice of the Supreme Court
ANDREW A. CRECCA, J.S.C.
Upon the following papers read on these motions for a preliminary injunction, for modification of a temporary restraining order, and for dismissal of a counterclaim: Notice of Motion/Order to Show Cause and supporting papers by plaintiff dated July 1,2020; Notice of Motion/Order to Show Cause and supporting papers by defendant, dated July 20,2020; Notice of Motion/Order to Show Cause and supporting papers by plaintiff, dated August 3, 2020; Answering Affidavits and supporting papers by defendant, dated July 20,2020; by plaintiff, dated August 14, 2020; and Replying Affidavits and supporting papers by plaintiff, dated August 14, 2020; it is
ORDERED that these motions are consolidated for purposes of this determination; and it is
ORDERED that the motion (001) by plaintiff for a preliminary' injunction is denied; and it is
ORDERED that the motion (002) by defendant for an order modifying a temporary restraining order is denied; and it is further
ORDERED that the motion (003) by plaintiff for an order dismissing the counterclaim for constructive discharge is denied.
The within action arises out of an employment relationship which was allegedly governed by an "Assignment of Inventions, Non-Disclosure and Non-Competition Agreement ("Agreement") dated July 17, 2008. Plaintiff seeks money damages and injunctive relief against its former employee for alleged breach of fiduciary duty, breach of duty of loyalty, breach of contract and unfair competition. Issue has been joined and defendant has asserted a counterclaim for constructive discharge, as well as a counterclaim for a declaratory judgment that the non-competition agreement is unenforceable due to plaintiff s unclean hands. Plaintiff now moves by order to show cause seeking a preliminary injunction:
(1) enjoining defendant and any persons acting in concert and participation with him from directly or indirectly engaging in the sale and service of Motorola Two-Way Professional products, Wheelen products, Nextel-branded products, emergency lighting systems, sirens, consoles, video cameras, and equipment for fire and police vehicles;
(2) enjoining defendant and any persons acting in concert and participation with him from soliciting any employee, customer, or prospective customer of Carrier Communications Corp, for a period of no less than one (1) year;
(3) enjoining defendant and any persons acting in active concert and participation with him from using any proprietary and confidential information of Carrier Communications Corp.:
(4) enjoining defendant during the pendency of this action from committing any of the acts or engaging in any conduct that is in violation of the Agreement, including, but not limited to, the prohibition against competition and solicitation and against using or disclosing confidential proprietary information; and
(5) directing defendant to comply with the terms of the Agreement, including, but not limited to, the confidentiality terms and the prohibition against competition and solicitation.
A temporary restraining order was granted by this court (Santorelli, J.) on July 1, 2020. Upon defendant's application, the temporary restraining order was modified by order of the Honorable Denise F. Molia issued on July 20, 2020.
Defendant now moves for an order modifying the July 1,2020 temporary restraining order. Such modification was implemented by the July 20, 2020 order. As the temporary restraining order has already-been modified and will terminate upon entry of the within order, defendant's motion is denied as moot. Plaintiff moves pursuant to CPLR 3211 (a) (7) for an order dismissing the constructive discharge counterclaim. In response, prior to joinder of issue with respect to his counterclaims, defendant filed a notice discontinuing the constructive discharge counterclaim. Plaintiffs motion to dismiss, therefore, is denied as moot.
As to the remaining motion, a preliminary inj unction may be granted in a case where an adverse party seeks to do or threatens to commit an act in violation of the other party's rights regarding the subject matter of the action and such act would harm the adverse party or would render an eventual judgment ineffectual (CPLR 6301). For the court to consider granting injunctive relief, a movant must establish by clear and convincing evidence (1) a likelihood of success on the merits, (2) that irreparable harm is likely to occur in the absence of injunctive relief (excluding economic loss which is compensable with monetary damage) and (3) that the balance of equities favors granting injunctive relief) Bashian & Farber, LLP v Syms, 147 A.D.3d 714, 46 N.Y.S.3d 202 [2d Dept 2017]; Masjid Usman, Inc. v Beech 140, LLC, 68 A.D.3d 942, 892 N.Y.S.2d 430 [2d Dept 2009]; Di Fabio v Omnipoint Communications, Inc., 66 A.D.3d 635, 887 N.Y.S.2d 168 [2d Dept 2009]; Ruiz v Meloney, 26 A.D.3d 485, 810 N.Y.S.2d 216 [2d Dept 2006]; Ying Fung Moy v Hohi Umeki. 10 A.D.3d 604, 781 N.Y.S.2d 684 [2d Dept 2004]). The nature of the harm alleged must be imminent and nonspeculative (American Commerce Ins. Co. v Francois, 125 A.D.3d 903, 1 N.Y.S.3d 860 [2d Dept 2015]; Joseph v Joseph, 108 A.D.3d 597, 968 N.Y.S.2d 388 [2d Dept 2013]; Rowland v Dushin, 82 A.D.3d 738, 917 N.Y.S.2d 702 [2d Dept 2011 ]). Furthermore, the purpose of a preliminary injunction is to preserve the status quo, not to determine the ultimate rights of the parties (19 Patchen, LLC v Rodriguez. 153 A.D.3d 1382, 61 N.Y.S.3d 616 [2d Dept 2017]; Masjid Usman, Inc. Inc. v Beech 140, LLC, supra}. A determination that issues of fact exist as to any of the necessary elements does not in itself constitute grounds for denial of a motion seeking a preliminary injunction (CPLR 6312 [c]); however, if such issues are of a character that they significantly undermine the movant's likelihood of success on the merits, such motion should be denied (19 Patchen, LLC v Rodriguez, supra', Joseph v Joseph, supra, Radiology Assoc, of Poughkeepsie, PLLC v Drocea, 87 A.D.3d 1121 930 N.Y.S.2d 594 [2d Dept 2011]; Matter of Advanced Digital Sec. Solutions, Inc. v Samsung Techwin Co., Ltd.. 53 A.D.3d 612, 862 N.Y.S.2d 551 [2d Dept 2008]).
Defendant was employed with plaintiff from 2006 through May 1, 2020. Part of the relief sought by plaintiff is enforcement of the non-competition provisions of the Agreement which, by their terms, were to be in effect "[d]uring employee's employment with the Company and for twelve (12) months after termination thereof." As more than twelve months have lapsed since defendant terminated his employment, defendant's obligations in this regard are no longer in effect. Accordingly, the portion of plaintiffs motion seeking a preliminary injunction enjoining defendant from competing with plaintiff and soliciting plaintiffs employees or customers, and from engaging in the sale and service of Motorola Two-way Professional products, Wheelen products, Nextel-branded products, emergency lighting systems, sirens, consoles, video cameras, and equipment for fire and police vehicles is denied as academic (see Matter of Hearst Corp, v Clyne. 50 N.Y.2d 707, 431 N.Y.S.2d 400 [1980]; A.I.M.G., LLC v ERA Funding Group, LLC, 159 A.D.3d 855, 70 N.Y.S.3d 78 [2d Dept 2018]; Tri-Star Lighting Corp, v Goldstein. 151 A.D.3d 1102, 58 N.Y.S.3d 448 [2d Dept 2017]; Tomasino v Tomasino, 127 A.D.3d 1069, 7 N.Y.S.3d 483 [2d Dept 2015] · Pescatore v Dune Alpin Farm Prop. Owners Assn., Inc., 120 A.D.3d 785,992 YS2d 97 (2d Dept 2014]; Aniqa Halal Live Poultry Corp. v Montague-Lee Ltd. Partnership, 110 A.D.3d 934, 973 N.Y.S.2d 740 [2d Dept 2013]).
Plaintiff also seeks an order enjoining defendant and any of his associates from using or disclosing any of plaintiffs proprietary and confidential information, and directing defendant to comply with the terms of the Agreement, including but not limited to the confidentiality provisions. In support of its motion, plaintiff asserts that violations of the Agreement will result in loss of goodwill and reputation. Plaintiff s argument is largely focused on the non-compete portions of the agreement which are unenforceable at this juncture; however, plaintiff also argues that it will lose the "value of the customer lists, prospect lists and pipelines, sales strategies and pricing and margin information." In addition, plaintiff claims that defendant used trade secrets and proprietary information, such as customer lists and price information, to divert business away from it and to himself. It asserts that such losses cannot be measured. These vague and conclusory assertions are insufficient to establish that imminent, irreparable harm will result if injunctive relief is not granted (see Rowland v Dushin, supra; Trump on the Ocean, LLC v Ash, 81 A.D.3d 713, 916 N.Y.S.2d 177 [2d Dept 2011]; Family-Friendly Media, Inc. v Recorder Tel. Network. 74 A.D.3d 738. 903 N.Y.S.2d 80 [2d Dept 2010]; Golden v Steam Heat, Inc., 216 A.D.2d 440, 628 N.Y.S.2d 375 [2d Dept 1995]). Plaintiff has also failed to establish that any such injury would be non-compensable by money damages or that the balance of equities leans in its favor (Karr Graphics Corp, v Spar Knitwear Corp., 192 A.D.3d 673, N.Y.S.3d [2d Dept 2021]; Congregation Erech Shai Bais Yosef, Inc. v Werzberger. 189 A.D.3d 1165, 138 N.Y.S.3d 542 [2d Dept 2020]; Family-Friendly Media, Inc. v Recorder Tel. Network, supra: Masjid Usman, Inc. v Beech 140, LLC, supra: Di Fabio v Omnipoint Communications, Inc., supra). Plaintiff s balance of equities argument is based upon an asserted need to stop defendant from competing with plaintiff and soliciting its customers using proprietary information. The threat of such imminent misuse has not been adequately demonstrated and the likelihood of harm has not been established (Family-Friendly Media, Inc. v Recorder Tel. Network, supra: Golden v Steam Heat, Inc., supra). Plaintiff s argument that defendant would not suffer if an injunction was granted is insufficient to demonstrate that the balance of equities is in plaintiffs favor. The court need not consider plaintiffs likelihood of success on the merits. Plaintiff has not established that defendant seeks to do or threatens to commit an act in violation of its rights that would cause harm to the extent that a judgment would be rendered ineffectual. Accordingly, plaintiffs motion seeking a preliminary injunction is denied.