SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department
463
CA 13-01375
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, LINDLEY, AND VALENTINO, JJ.
VITAL CRANE SERVICES, INC.,
PLAINTIFF-APPELLANT,
V MEMORANDUM AND ORDER
JAMES MICUCCI AND POLLOCK RESEARCH &
DESIGN, INC., DOING BUSINESS AS SIMMERS
CRANE & DESIGN SERVICES, CO.,
DEFENDANTS-RESPONDENTS.
RUPP, BAASE, PFALZGRAF, CUNNINGHAM & COPPOLA, LLC, BUFFALO (RYAN A.
LEMA OF COUNSEL), AND MATTHEW P. PYNN, LOCKPORT, FOR
PLAINTIFF-APPELLANT.
NIXON PEABODY LLP, BUFFALO (BENJAMIN R. DWYER OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.
Appeal from an order of the Supreme Court, Niagara County (Ralph
A. Boniello, III, J.), entered April 16, 2013. The order, among other
things, granted in part defendants’ motion for summary judgment.
It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying that part of the motion
seeking summary judgment dismissing the first cause of action in the
amended complaint with respect to 23 of the 47 “at issue” customers
and reinstating that cause of action to that extent, and as modified
the order is affirmed without costs in accordance with the following
Memorandum: Plaintiff and defendant Pollock Research & Design, Inc.,
doing business as Simmers Crane & Design Services, Co. (Simmers
Crane), are in the business of inspecting, servicing and installing
overhead cranes. During his employment by plaintiff as a salesman and
service technician, defendant James Micucci signed an “Employee
Agreement Not to Compete” (Agreement). Micucci agreed, among other
things, not to engage in a business similar to, or in competition
with, plaintiff’s business for a period of two years from the date of
termination of his employment with plaintiff, within a 400-mile radius
of plaintiff’s office or Micucci’s home address. Shortly after
signing the Agreement, Micucci left plaintiff’s employ and began
working for Simmers Crane, whereupon plaintiff commenced the instant
action. Defendants thereafter moved for summary judgment dismissing
the amended complaint.
We conclude that Supreme Court properly granted those parts of
the motion concerning the fifth cause of action, alleging that Micucci
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CA 13-01375
breached the Agreement, and the second cause of action, alleging that
Simmers Crane tortiously interfered with Micucci’s performance of the
Agreement. Defendants established that the nonsolicitation provisions
in the Agreement are overbroad to the extent that they “seek to bar
[Micucci] from soliciting or providing services to [customers] with
whom [Micucci] never acquired a relationship through his . . .
employment” with plaintiff, or from soliciting customers with whom
plaintiff never had an established relationship (Scott, Stackrow &
Co., C.P.A.’s, P.C. v Skavina, 9 AD3d 805, 806, lv denied 3 NY3d 612;
see Zinter Handling, Inc. v Britton, 46 AD3d 998, 1001). Defendants
further established that the Agreement is unreasonable with respect to
its geographic terms (see Scalise Indus., Inc. v Murdock, 21 AD3d
1346, 1346). Defendants thus met their burden of establishing as a
matter of law that the Agreement is invalid and unenforceable, and
plaintiff failed to raise a triable issue of fact (see generally
Carducci v Bensimon, 115 AD3d 694, 695). In view of the undisputed
evidence that the Agreement was presented to Micucci as a condition of
his continued employment with plaintiff, the court properly concluded
that partial enforcement of the Agreement is not warranted (see Scott,
Stackrow & Co., C.P.A.’s, P.C., 9 AD3d at 807).
The court also properly granted that part of the motion
concerning the third cause of action, alleging conversion of
plaintiff’s files, inasmuch as defendants established that there was
no evidence of specific, identifiable files that were taken from
plaintiff (see National Ctr. for Crisis Mgt., Inc. v Lerner, 91 AD3d
920, 920-921).
We agree with plaintiff, however, that the court erred in
granting in its entirety that part of the motion concerning the first
cause of action, alleging defendants’ tortious interference with
plaintiff’s prospective contractual relations. During discovery,
plaintiff identified 47 companies and governmental entities that are
“at issue customers” in this action, i.e., prospective customers whom
plaintiff allegedly lost as the result of defendants’ tortious
conduct. We conclude that defendants met their burden of establishing
as a matter of law that they did not cause injury to plaintiff’s
alleged business relationships with 24 of those “at issue customers”
(see North State Autobahn, Inc. v Progressive Ins. Group Co., 102 AD3d
5, 21). Triable issues of fact remain, however, with respect to
defendants’ alleged use of wrongful means to interfere with
plaintiff’s prospective contractual relations with the remaining 23
“at issue customers” (see Out of Box Promotions, LLC v Koschitzki, 55
AD3d 575, 577), i.e., 174th Fighter Wing, Agri-Mark, Alliance
Precision Plastics, American Packaging Corporation, Batavia City
Maintenance Bureau, Batavia City Waste Water, Cargill Salt, City of
Geneva, Crest Haven Pre Cast, Fairbanks Scale, Graphic Controls LLC,
Jamestown Advanced Products, LCI Industrial (Rocon), Litelab Corp.,
North Lawrence Dairy (Breyers), NYS DOT Hornell, NYS DOT Warsaw, Pro-
Lift (a.k.a. Clarklift of Buffalo), Sentry Safe (a.k.a. Sentry Group),
U.S. Salt LLC, Village of Penn Yan (a.k.a. Penn Yan Municipal
Utilities), Waste Management at High Acres, and Watkins Glen Waste
Water. We therefore modify the order by denying that part of
defendants’ motion seeking summary judgment dismissing the first cause
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CA 13-01375
of action insofar as plaintiff alleges defendants’ tortious
interference with plaintiff’s prospective contractual relations with
those 23 “at issue” customers.
Entered: June 20, 2014 Frances E. Cafarell
Clerk of the Court