Catalogue Service of Westchester, Inc. v. Wise
| Decision Date | 13 June 1978 |
| Citation | 63 A.D.2d 895,405 N.Y.S.2d 723 |
| Court | New York Supreme Court — Appellate Division |
| Parties | CATALOGUE SERVICE OF WESTCHESTER, INC., Plaintiff-Appellant, v. Paul WISE et al., Defendants-Respondents, Allan Nadel et al., Defendants. |
W. G. O'Donnell, New York City, for plaintiff-appellant.
S. Squire, New York City, for defendants-respondents.
Before LUPIANO, J. P., and FEIN, LANE, LYNCH and SANDLER, JJ.
Judgment, Supreme Court, New York County, entered March 23, 1977, dismissing the complaint on the merits after a trial without a jury in this action for, inter alia, breach of fiduciary duties owed by employees, unanimously modified, on the law and the facts, to direct judgment for the plaintiff as to the defendants' solicitation of the business of the Amscan Company, Holt Howard Company and the Beth Weissman Company, to remand to the trial court for an assessment of the damages sustained by the plaintiff as a result of such solicitation, and otherwise affirmed, without costs and disbursements.
The trial court found that the plaintiff's witness Nadel was unworthy of belief and it refused to credit any of his testimony except where it was corroborated by others. The evidence justifies this conclusion.
Nadel's only corroborated testimony resulted in a finding by the court that "while still employed by the plaintiff company, the defendants solicited the business of the Amscan Company, Holt Howard Company and the Beth Weissman Company" for their own soon-to-be-formed company. The court then found that . We disagree with this conclusion.
It is the general rule that an employee may solicit an employer's customers only when the employment relationship has been terminated (Duane Jones Co. v. Burke, 306 N.Y. 172, 117 N.E.2d 237; Scott & Co. v. Scott, 186 App.Div. 518, 174 N.Y.S. 583; Hercules Packing Corp. v. Steinbruckner, 28 A.D.2d 635, 280 N.Y.S.2d 423). We have found no authority relaxing the rule for personal friendship or the imminence of the termination of the relationship.
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