1 Model Mgmt., LLC v. Kavoussi
| Decision Date | 10 March 2011 |
| Citation | 82 A.D.3d 502,918 N.Y.S.2d 431 |
| Parties | 1 MODEL MANAGEMENT, LLC, Plaintiff-Appellant, v. Ali KAVOUSSI, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
McCue, Sussmane & Zapfel, P.C., New York (Kenneth Sussmane of counsel), for appellant.
Kasowitz, Benson, Torres & Friedman LLP, New York (Brian S. Kaplan of counsel), for respondent.
SAXE, J.P., FRIEDMAN, DeGRASSE, FREEDMAN, ABDUS-SALAAM, JJ.
Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered October 13, 2009, which, insofar as appealed from as limited by the briefs, granted defendant's motion forsummary judgment dismissal of the breach of contract and unfair competition causes of action and denied plaintiff's motions for partial summary judgment and for leave to amend its complaint, unanimously modified, on the law, to reinstate the breach of contract claim insofar as it relates to the 90 daynotice provision and the restrictive covenant, and otherwise affirmed, without costs.
Plaintiff 1 Model Management (1MM), a model agency, seeks damages and injunctive relief against Ali Kavoussi, a former 1MM model agent employed pursuant to a May 2004 contract. In May 2008, Kavoussi terminated the contract, left 1MM, and began working for another model agency, Men Women N.Y. Model Management Inc. d/b/a Women Management (Men Women). During the next eight months, three models whom 1MM had been representing when Kavoussi terminated the contract also left 1MM for Men Women.
Kavoussi failed to comply with a contract provision requiring him to provide 90 days advance notice before terminating. He contends that a letter from 1MM to Kavoussi expressly waived the requirement, but the letter only stated that 1MM was "willing" to waive it and asked Kavoussi to execute an acknowledgment that he would comply with various provisions in the contract. Since Kavoussi did not sign the acknowledgment, a triable issue of fact exists whether notice actually was waived or was conditioned upon the acknowledgment.
The contract also provided that, for the one-year period after his termination, which has now passed, Kavoussi could not "be employed by ... any entity which ... represents ... any model managed by 1MM at the time of Employee's termination or at any time during the 90-day period preceding such termination." Such a restrictive covenant is enforceable only to the extent, among other things, that it is reasonable and necessary to protect the employer's legitimate interest and does not impose undue hardship on the employee ( BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 388-389, 690 N.Y.S.2d 854, 712 N.E.2d 1220 [1999] ).
An employer's legitimate interest can include preventing an employee from misappropriating trade secrets or confidential customer lists or keeping an employee with unique or extraordinary skills from joining a competitor to...
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