Cupid Diaper Service v. Adelman
| Decision Date | 30 January 1961 |
| Citation | 27 Misc.2d 1095,211 N.Y.S.2d 813 |
| Parties | CUPID DIAPER SERVICE, a Limited Partnership, Plaintiff, v. Martin ADELMAN and Julius Mund, Defendants. |
| Court | New York Supreme Court |
Myron P. Gordon, New York City, for plaintiff.
Lanna & Coppola, Yonkers (Vincent W. Lanna, Yonkers, of counsel), for defendants. JAMES D. HOPKINS, Justice.
The plaintiff applies for a temporary injunction restraining the defendants, former employees, from soliciting and serving plaintiff's customers. On October 31, 1960, plaintiff purchased a diaper service business; both defendants had been employees of the business, the defendant Adelman as supervisor-salesman for some four or five years, and the defendant Mund as a routeman-salesman for some seven or eight years. Within two or three days of the purchase, Adelman left plaintiff's employment voluntarily; within ten days of the purchase, Mund left plaintiff's employment voluntarily. Shortly thereafter, Adelman commenced his own diaper service business, and employed Mund as a routeman.
The plaintiff has since found that prospective customers who had made reservations for service have cancelled their reservations and have instead engaged the service of the defendant; other customers previously served by the plaintiff have cancelled their commitments and are now served by the defendants. These prospective and actual customers had been procured or served by Mund while employed by the plaintiff or plaintiff's predecessor. In addition, it appears that Adelman had access to plaintiff's list of customers, and Mund had served approximately 200 of the plaintiff's customers.
The defendant's resistance to the application stems from their claim that the former customers of the plaintiff now served by them sought their service because of dissatisfaction with the plaintiff, rather than because of solicitation. This explanation stretches credulity, in light of the undenied circumstance that the defendants became the beneficiaries of the dissatisfaction within a short time after Adelman established his competing service. The defendants further contend that in many instances the customers changing their patronage were motivated by their desire to continue business with Mund. Nevertheless, the affidavits produced from such customers are stereotypes which are not convincing under the factual pattern, and do not persuade the court that some solicitation, however indirect and vaguely phrased, did not precede the discontinuance of plaintiff's service. Finally, the...
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