Opinion
July 13, 1978
Appeal from the Niagara Supreme Court.
Present — Cardamone, J.P., Simons, Hancock, Jr., Denman and Witmer, JJ.
Order unanimously modified in accordance with memorandum and, as modified, affirmed, with costs, to defendants. Denman, J., not participating. Memorandum: Before plaintiff Ernest R. Edmunds sold his then solely owned corporation, Edmunds Manufacturing Co., Inc. (EMC), to plaintiff Union Kol-Flo Corporation, he had "bought out" the 25% interest in EMC which was owned by Donald J. Basil and wife. In the contract of sale of his interest in EMC, dated May 23, 1977, defendant Donald J. Basil agreed that for three years he would not remove or copy any information relative to confidential or proprietary equipment, designs, trade secrets, customer lists or product costs or profit information or other records of the company. In November, 1977 plaintiffs instituted this application for an injunction against defendants for violating that agreement, and they applied for a preliminary injunction pending trial. Special Term granted the application in part. The pleadings and affidavits underlying this application are rife with questions of fact, including whether trade secrets or confidential matters are involved (Gaynor Co. v Stevens, 61 A.D.2d 775), whether defendants have appropriated any such, and what are the equities between the parties. Except with respect to defendants' implied representations that plaintiff Union Kol-Flo Corporation has abandoned the field of research products involved herein, plaintiffs have shown no clear right to a permanent injunction, and so should not, preliminarily, be granted the relief which they may not be able to attain at the conclusion of the lawsuit (Brand v Bartlett, 52 A.D.2d 272, 275; City of Buffalo v Mangan, 49 A.D.2d 697; Damon Creations v James Talcott, Inc., 39 A.D.2d 677; Albini v Solork Assoc., 37 A.D.2d 835; Rohauer v Killiam, 37 A.D.2d 547; Barricini, Inc. v Barricini Shoes, 1 A.D.2d 905).