Summary
holding that preliminary injunction to enforce covenant not to compete cannot apply to “plaintiff's former clients who had voluntarily and without solicitations sought out defendants after defendants left plaintiff's employ”
Summary of this case from Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLCOpinion
December 22, 1995
Appeal from the Supreme Court, Erie County, Glownia, J.
Present — Green, J.P., Pine, Wesley, Balio and Boehm, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court did not abuse its discretion in granting plaintiff's motion for a preliminary injunction to enforce the covenant not to compete in defendants' partnership agreements (see, Gelder Med. Group v Webber, 41 N.Y.2d 680; Karpinski v Ingrasci, 28 N.Y.2d 45; Kindman Co. v Stollar, 151 A.D.2d 393; Young Co. v Black, 97 A.D.2d 369, appeal dismissed 61 N.Y.2d 712). The court properly found that plaintiff had made a sufficient showing to warrant such relief. The court also properly exempted from the preliminary injunction six of plaintiff's former clients who had voluntarily and without solicitation sought out defendants after defendants left plaintiff's employ (see, Kindman Co. v Stollar, supra; Young Co. v Black, supra). While this appeal was pending, we granted defendants' motion to increase the number of plaintiff's former clients exempted from the preliminary injunction to 34 for the same reason (see, CPLR 5518). In order "to maintain a status quo that will encourage the parties to quickly resolve their differences at a trial on the merits" (Young Co. v Black, supra, at 370), we modify the order on appeal by deleting the second ordering paragraph therefrom and substituting in its place the following language: "ORDERED, that, pending final determination on the merits, the preliminary injunction shall not apply to the 34 clients of plaintiff previously excluded from the preliminary injunction by order of this Court entered January 19, 1995" (see, Karpinski v Ingrasci, supra, at 51-52).