Briskin v. All Seasons Services, Inc.

• Decision Date: 15 July 1994
• Citation: 206 A.D.2d 906,615 N.Y.S.2d 166
• Court: New York Supreme Court — Appellate Division
• Parties: Alvin BRISKIN, Appellant, v. ALL SEASONS SERVICES, INC., Respondent.

Page 166

615 N.Y.S.2d 166

206 A.D.2d 906

Alvin BRISKIN, Appellant, v. ALL SEASONS SERVICES, INC., Respondent.

Supreme Court, Appellate Division Fourth Department.

July 15, 1994.

Harris, Beach & Wilcox by Christopher A. Dipasquale, Douglas Foss, Rochester, for appellant.

Harter, Secrest and Emery (Peter H. Abdella, of counsel), Rochester, for respondent.

Before DENMAN, P.J., and GREEN, BALIO, WESLEY and DAVIS, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking a declaratory judgment that the non-compete covenant set forth in his employment agreement with defendant All Seasons Services, Inc. (All Seasons) was invalid and unenforceable. Plaintiff appeals from a judgment declaring that covenant valid and enforceable and permanently enjoining plaintiff from competing with All Seasons until termination of the covenant. We reverse.

It is well established that restrictive covenants that tend to prevent an employee from pursuing a similar vocation upon termination or retirement from employment are disfavored by the law (see, Columbia Ribbon & Carbon Mfg. Co. v. A-1-A Corp., 42 N.Y.2d 496, 499, 398 N.Y.S.2d 1004, 369 N.E.2d 4; Accent Stripe v. Taylor, 204 A.D.2d 1054, 612 N.Y.S.2d 533; Pezrow Corp. v. Seifert, 197 A.D.2d 856, 602 N.Y.S.2d 468, lv. dismissed 83 N.Y.2d 798, 611 N.Y.S.2d 130, 633 N.E.2d 485; Comcast Sound Communications v. Hoeltke, 174 A.D.2d 1023, 572 N.Y.S.2d 189, lv. dismissed 79 N.Y.2d 915, 581 N.Y.S.2d 667, 590 N.E.2d 252; Buffalo Imprints v. Scinta, 144 A.D.2d 1025, 1026, 534 N.Y.S.2d 55; Newco Waste Sys. v. Swartzenberg, 125 A.D.2d 1004, 510 N.Y.S.2d 399). Such covenants will not be enforced unless necessary to protect trade secrets, confidential customer lists or good will, or to prevent special harm to which the former employer might be exposed because of the unique nature of the employee's services (see, American Broadcasting Cos. v. Wolf, 52 N.Y.2d 394, 403, 438 N.Y.S.2d 482, 420 N.E.2d 363; Accent Stripe v. Taylor, supra; Pezrow Corp. v. Seifert, supra, 197 A.D.2d at 856-857, 602 N.Y.S.2d 468). All Seasons did not dispute that the identity of potential customers for vending services could be obtained through the yellow pages of the telephone book, and it conceded that its price structure varies with the preferences and needs of each customer. Under the circumstances, All Seasons failed to establish that its customer list or price structure policy and contracts constitute a trade secret (see, Columbia Ribbon & Carbon Mfg. Co. v. A-1-A Corp., supra, 42 N.Y.2d at 499, 398 N.Y.S.2d 1004, 369 N.E.2d...