Malcolm Pirnie, Inc. v. Werthman

Full title: MALCOLM PIRNIE, INC., PLAINTIFF-APPELLANT, v. PAUL H. WERTHMAN, THOMAS H…

Court: Appellate Division of the Supreme Court of New York, Fourth Department

Date published: Feb 7, 2001

280 A.D.2d 934 (N.Y. App. Div. 2001)

720 N.Y.S.2d 863

Opinion

February 7, 2001.

Appeal from Order of Supreme Court, Erie County, Flaherty, J. — Dismiss Pleading.

PRESENT: PIGOTT, JR., P.J., WISNER, HURLBUTT, BURNS AND LAWTON, JJ.

Order unanimously reversed on the law without costs, motion denied and first through eighth causes of action reinstated.

Memorandum:

Supreme Court erred in granting defendants' motion to dismiss the first through eighth causes of action of the amended complaint ( see, CPLR 3211 [a] [1], [7]). The restrictive covenants set forth in the employment agreement are client-based, and the court erred in determining that they are unreasonable as a matter of law because they contain no geographic limitations ( see, Bates v. Chevrolet Corp. v. Haven Chevrolet, 13 A.D.2d 27, 30). In any event, overbroad restrictive covenants are partially enforceable "to the extent necessary to protect [the employer's] legitimate interest" ( BDO Seidman v Hirshberg, 93 N.Y.2d 382, 394; see, Trans-Continental Credit Collection Corp. v. Foti, 270 A.D.2d 250, 251).