Dependable Lists, Inc. v. Malek

• Decision Date: 22 December 1983
• Citation: 98 A.D.2d 679,469 N.Y.S.2d 754
• Parties: DEPENDABLE LISTS, INC. et al., Plaintiffs-Appellants, v. Theodore MALEK et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

Page 754

469 N.Y.S.2d 754

98 A.D.2d 679

DEPENDABLE LISTS, INC. et al., Plaintiffs-Appellants, v. Theodore MALEK et al., Defendants-Respondents.

Supreme Court, Appellate Division First Department.

Dec. 22, 1983.

Henry C. Malon, New york City (Alan Robert Geist, White Plains, of counsel), for plaintiffs-appellants.

Thomas R. Rafalsky, New York City (Lewis H. Fishlin, New York City, of counsel), for defendants-respondents.

Before KUPFERMAN, J.P., and ROSS, CARRO, ASCH and ALEXANDER, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County, entered September 24, 1982, in this consolidated action which granted the defendant's motion for partial summary judgment and dismissed the causes of action alleged in the complaint in action # 1, severed the causes of action set forth in the complaint in action # 2 and denied the cross-motion of the plaintiffs in action # 1 for supervision of discovery proceedings, is unanimously modified on the law, and the facts to the extent of denying the motion for partial summary judgment and vacating the severance and is otherwise affirmed without costs.

The plaintiffs-appellants Dependable Lists, Inc., and Jack Oldstein seek to enforce an anti-competition clause alleged to have been contained in an employment contract entered into between the corporate plaintiff and Theodore Malek its former employee. Special Term granted the defendant-respondents' motion for partial summary judgment based upon the plaintiff's failure to produce either a copy of the agreement containing the alleged anti-competition clause or to submit evidence establishing that the agreement in fact contained such a provision. Special Term also denied the plaintiff-appellant's cross-motion for continued examinations before trial under the supervision of a Supreme Court justice, holding that the grant of partial summary judgment rendered that request moot. In respect to the claims that the defendants had misappropriated plaintiff's confidential lists and trade secret information, Special Term found that plaintiff-appellants had failed to sustain their burden of establishing that any such material was in fact confidential.

In granting partial summary judgment, Special Term abused its discretion. It resolved issues of fact presented by the papers, rather than merely determining that there were genuine issues of facts requiring a trial. The role of the court on a motion for summary judgment is issue finding not issue resolution. (See Nestlerode v. Federal Insurance, 66 A.D.2d 504, 414 N.Y.S.2d 398; Hirsch v. S. Berger Import & Mfg. Corp., 67 A.D.2d 30, 414 N.Y.S.2d 324).

The thrust of respondents' attack upon the complaint asserted in action # 1, is that since the appellants cannot now produce a copy of the alleged agreement containing the anti-competition clause, they cannot establish that enforcement of the agreement is not barred by the Statute of Frauds. The defendant Malek has conceded in his examination before trial, however that such a written agreement did in fact exist. He stated that he recalls "signing a document" when he joined Dependable, but that he does...