Opinion
04-6460.
Decided June 30, 2004.
BLUMBERG, CHERKOSS, FITZ GIBBONS BLUMBERG, LLP, Amityville, New York, Attorneys for Plaintiff.
PELLETREAU PELLETREAU, LLP, Patchogue, New York, Attorneys for Defendant.
ORDERED that this motion by plaintiff for an order granting plaintiff a money judgment in the sum of $200,000.00 or such other amount as may accrue during the pendency of this action for breach of employment contract; awarding plaintiff punitive and/or treble damages in the amount of $600,000.00; for an injunction restraining defendant from competing and disclosing, in whole or in part, or using any of plaintiff's information or assets, or from soliciting, servicing or dealing with plaintiff's customers; and awarding plaintiff interim legal fees in the amount of not less than $5,000.00 together with costs and disbursements is denied; and it is further
ORDERED that this cross motion for an order denying the motion is denied for failure to request affirmative relief.
Defendant is a former employee of plaintiff, a franchise providing house cleaning services. Defendant's employment was terminated on or about July 25, 2003 for alleged breach of her employment agreement by soliciting customers from plaintiff in contravention of the agreement's non-competition/non-solicitation clause. By his affidavit, plaintiff's president, George Haverly, alleges that on July 16, 2003 defendant offered to clean the home of a new customer, Thomas Ingargiola, "on the side" for a lower price than plaintiff charged when the customer indicated that he could not afford to become a regular customer due to the cost. In addition, defendant crossed out Haverly's name and the office telephone number on a Merry Maids business card, put her own name and telephone number on the back of the card and gave it to the new customer, who later notified Haverly's office of the offer. Haverly states that he and his wife, plaintiff's vice president, then searched their records and determined that 31 houses that had been regularly serviced by defendant had cancelled. Haverly also states that on or about July 24, 2003 he saw defendant's vehicle with a complete set of Merry Maids equipment and chemicals in front of the house of a former customer; that another customer, Mrs. Kusmaul, informed plaintiff that she had been solicited by defendant; and that numerous items of plaintiff's equipment and chemicals have not been returned by defendant.
Plaintiff served a summons with notice dated March 17, 2004 upon defendant pursuant to CPLR 305(b) by personal service together with the instant motion papers on April 5, 2004. The notice indicates that this is an action for breach of contract and that plaintiff is seeking to recover actual damages in the amount of not less than $200,000.00; punitive and/or treble damages in an amount of not less than $600,000.00; an award of legal fees in an amount of not less than $5,000.00; sanctions; costs and disbursements; and an injunction. In addition, defendant is summoned "to serve a Notice of Appearance, on the Plaintiff's Attorneys within 20 days after the service of this Summons, exclusive of the day of service (or within 30 days after the service is complete if this summons is not personally delivered to you within the State of New York); and in case of your failure to appear or Answer, judgment will be taken against you by default for the relief demanded herein."
Plaintiff now moves for the relief listed in the notice. In support of the motion, plaintiff submits, inter alia, the summons with notice; the affidavits of George Haverly and Thomas Ingargiola; the employment agreements signed by defendant; a copy of the front and back of the subject Merry Maids card; and a chart listing the names of the 31 customers allegedly lost to defendant, dates of loss, and approximate damages.
Defendant's "cross motion" does not request affirmative relief, merely denial of plaintiff's motion, and is essentially opposition to the motion and is considered as such (CPLR 2215; Achey v. D'Elia, 112 Misc 2d 941, 447 NYS2d 852). In support of her opposition, defendant submits, inter alia, her own affidavit; a copy of her Permanent Resident Card; the affidavit of her husband; and her W-2 forms from plaintiff for the years 1999 through 2003. By her affidavit, defendant informs that she was born in Ecuador, has become a permanent resident of the United States, speaks and understands English with difficulty, and cannot read English.
Here, plaintiff's motion is actually a motion for a default judgment pursuant to CPLR 3215(e) and for a preliminary injunction ( see, Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C3012:2, at 650). Inasmuch as defendant served a notice of appearance dated April 16, 2004 upon plaintiff, within twenty (20) days after service, defendant was not in default at the time her notice of appearance was mailed to plaintiff's attorney ( see, I.F.C. Personal Money Managers, Inc. v. Vadney, 133 Misc 2d 841, 508 NYS2d 845). Therefore, plaintiff's request for a default judgment pursuant to CPLR 3215(e) is denied. However, the instant action for breach of employment contract was validly commenced such that the Court may consider the request for a preliminary injunction ( see, Fairfield Presidential Assocs. v. Pollins, 85 AD2d 653, 445 NYS2d 229 [2d Dept 1981]; compare, Hart Island Committee v. Koch, 150 AD2d 269, 541 NYS2d 790 [1st Dept 1989]), appeal denied 75 NY2d 705, 552 NYS2d 928). The notice and affidavits in support of the motion establish the existence of a cause of action for a permanent injunction restraining defendant from competing, disclosing, in whole or in part, or using any company information or assets, or from soliciting, servicing, or dealing with the company's customers as prohibited by the employment agreement ( see, Fairfield Presidential Assocs. v. Pollins, supra).
The Court notes that pursuant to CPLR 3012(b), plaintiff was required to serve the complaint within twenty (20) days after the notice of appearance ( see, Pilipshen v. Pilipshen, 94 AD2d 699, 462 NYS2d 51 [2d Dept1983]; Siegel, Practice Commentaries, McKinney's Cons. Laws of NY, Book 7B, CPLR C3012:10, at 656). There is no evidence among the papers submitted to the Court as to whether a complaint was timely served.
In order to obtain a preliminary injunction, a party must demonstrate (1) a likelihood of ultimate success on the merits, (2) irreparable harm unless the injunction is granted, and (3) that the equities are balanced in their favor ( Harbor View Assn. v. Sucher, 237 AD2d 488, 655 NYS2d 97 [2d Dept 1997]). Preliminary injunctive relief is a drastic remedy and will be granted only if the movant establishes a clear right to it under the law and the undisputed facts found in the moving papers ( Miller v. Price, 267 AD2d 363, 700 NYS2d 209 [2d Dept 1999]).
The relevant clauses of the employment agreement dated April 15, 2003 provide that
1. The Employee agrees that during the term of this Agreement, or during employment with the Company, that she will not either directly or indirectly or in any other capacity, engage, invest, own or participate in any business that is in competition in any manner whatsoever with the business of the Company, or solicit work for or accept any business from any customer of the Company on behalf of herself or for any others.
2. The Employee further agrees and covenants as a part of this Agreement that for a period of eighteen (18) months following termination of this Agreement she shall not for any reason, directly or indirectly, on behalf of herself or for others, or in conjunction with any person, partnership or corporation do any of the following:
A. Within a one hundred (100) mile radius in any county or counties, in whatever state or states which are serviced by any of the offices of the Company in which the Employee was assigned at any time preceding the termination of this Agreement, solicit, work for, or accept business from any customer of the Company in any of the services provided by the Company; or . . .
D. Within a one hundred (100) mile radius in any county or counties, in whatever state or states which are serviced by any of the offices of the Company in which the Employee was assigned at any time preceding the termination of this Agreement, compete with the Company or solicit work from any past or present customer of the Company on behalf of the Employee directly or indirectly or in any other capacity for a period of eighteen (18) months.
The law is well established that restrictive covenants will be enforced only if reasonably limited in scope and duration, and then only to the extent necessary to protect the employer from unfair competition resulting from the use or disclosure of trade secrets or confidential customer lists, or if the former employee's services are unique or extraordinary ( Columbia Ribbon Carbon Mfg. Co., Inc. v. A-1-A Corp., 42 NY2d 496, 398 NYS2d 1004).
Although plaintiff alleges that defendant breached paragraph 1 of her employment agreement by soliciting customers while employed with plaintiff, plaintiff's list of 31 lost customers does not in and of itself demonstrate that those customers left so as to use defendant's services and that defendant actually worked on her own behalf for said 31 lost customers. Plaintiff has thereby failed to demonstrate a likelihood of ultimate success on the merits. In addition, the restrictive covenant prohibiting competition or solicitation of customers within a one hundred (100) mile radius "in any county or counties, in whatever state or states which are serviced by any of the offices of the Company in which the Employee was assigned" is unreasonably broad in its scope ( see, Lynch v. Bailey, 300 NY 615, 90 NE2d 484).
Moreover, Mr. Ingargiola's statements in his affidavit that defendant made the offer to clean his home for less money on her own behalf contrasts sharply with defendant's statements in her affidavit that Mr. Ingargiola sought her services for less money and was insistent despite her warning that she would get in trouble with her employer and that defendant finally gave Mr. Ingargiola her name and telephone number. Defendant states in her affidavit that she did not see or hear from Mr. Ingargiola after said incident and that after she was terminated, she did call Mrs. Kusmaul for a job either in her house, which was very large, or in Mrs. Kusmaul's own business. Defendant's husband, a non-party, states in his affidavit that he returned all cleaning materials furnished to his wife and that the items were not specific to Merry Maids and are available at stores. Where the facts, as in the case at bar, are in sharp dispute, a temporary injunction will not be granted ( see, Family Affair Haircutters, Inc. v. Detling, 110 AD2d 745, 488 NYS2d 204 [2d Dept 1985]). Nor has plaintiff alleged that the services rendered by defendant were unique or extraordinary ( see, id.; Janitor Service Mgt. Co. v. Provo, 34 AD2d 1098, 312 NYS2d 580 [4th Dept 1970]). Furthermore, plaintiff has failed to provide information as to its total number of customers during the years in question and plaintiff's income to enable the Court to determine the balancing of the equities ( see, Busters Cleaning Corp. v. Frati, 180 AD2d 705, 580 NYS2d 363 [2d Dept 1992; id.). Therefore, plaintiff's request for a preliminary injunction is denied ( see, F.A. Bartlett Tree Expert Co. v. Katz, 250 AD2d 726, 672 NYS2d 775 [2d Dept 1998]).
The parties are directed to appear for a preliminary conference before this court on August 5, 2004 at 9:30 a.m. (IAS Part 32, Arthur Cromarty Criminal Court Complex, 210 Center Drive, Riverhead).