Zygmunt Turski, Respondent, v Anthony Chiesa et al., Individually, and as Trustees of Park Electrochemical Corp. Employees’ Profit Sharing Trust, et al., Appellants.
In an action seeking payment under defendant Park Electrochemical Corporation’s (Park) corporate profit sharing plan, and for damages due to the wrongful use of plaintiff’s trade secret in violation of the parties’ contract, defendants appeal (1) from an order of the Supreme Court, Queens County, dated March 4, 1977, which, inter alia, granted plaintiff’s motion (a) for partial summary judgment on the first cause of action against the "trustee” defendants in the sum of $15,647.35 and (b) for leave to serve an amended complaint and (2) the judgment of the same court, entered thereon on March 21, 1977. Order modified, on the law, by (1) deleting the first two decretal paragraphs thereof and substituting therefor a provision denying the motion for leave to serve an amended complaint and (2) deleting so much of the fourth decretal paragraph thereof as begins with the words "for the sum of’. As so modified, order affirmed and action remanded to Special Term for further proceedings in accordance herewith. Judgment reversed, on the law. In February, 1958 Park established a profit sharing plan on behalf of its employees which provided, inter alia, that an employee’s interest in the plan would be forfeited on the following twin separate and distinctive grounds: "if [the employee] shall enter into a business competitive with the Company or become an employee of a business concern competitive with the Company.” In January, 1960, the plan was amended by, inter alia, specifically deleting the clause "or become an employee of a business concern competitive”, while retaining the language, "if [the employee] shall enter into a business competitive with the Company.” Plaintiff, an organic chemist, was, according to the schedule of benefits, entitled to 100% of Park’s contributions to the plan, or $15,647.35, when he was terminated from the corporation in November, 1973. Upon plaintiff’s demand for payment, however, the trustees of the profit sharing plan refused to pay him on the ground that he forfeited his interest by becoming "employed by and associated with” a competitor of Park, in violation of the amended plan. Plaintiff commenced this action to recover his plan interest, as well as damages for conversion by Park of a trade secret chemical formula, which plaintiff exclusively owned, and which Park utilized according to an agreement of the parties. Thereafter plaintiff moved for summary judgment with respect to his first cause of action, the plan interest, and for leave to serve an amended complaint adding three causes of action for punitive damages against the trustees of the plan. The causes of action sought to be added were grounded in the trustees’ malicious motivations underlying their refusal to pay plaintiff his plan interest, and their breach of fiduciary duties. Special Term, in effect, granted both motions and the defendants appeal to this court. Upon the record we agree with Special Term that partial summary judgment for the plan interest was justified, limited, however, as hereafter stated. The original plan provided, in effect, that "competitive employment” and "entry into business competitive” were separate, distinct and nonsynonymous grounds for forfeiture. For