Eastman Kodak Co. v. Carmosino
| Decision Date | 01 October 2010 |
| Citation | 77 A.D.3d 1434,909 N.Y.S.2d 247 |
| Parties | EASTMAN KODAK COMPANY, Plaintiff-Appellant, v. Robert CARMOSINO, Defendant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ward Greenberg Heller & Reidy LLP, Rochester (Eric J. Ward of Counsel), and Jones Day, Pittsburgh, PA, for Plaintiff-Appellant.
Cozen O'Connor, New York City (Mark J. Foley, of the Pennsylvania Bar, Admitted Pro Hac Vice, of Counsel), and Bilgore, Reich, Levine & Kantor, LLP, Rochester, for Defendant-Respondent.
PRESENT: CENTRA, J.P., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.
Plaintiff commenced this action seeking to enforce the restrictive covenants containedin an employment agreement that defendant signed while he was employed by plaintiff. Approximately four months after plaintiff notified defendant that his position had been eliminated as a result of a corporate reorganization, defendant began working for Hewlett Packard (HP), a competitor of plaintiff. Plaintiff appeals from an order denying its motion seeking a preliminary injunction enjoining defendant from commencing employment with HP.
We conclude that Supreme Court did not abuse its discretion in refusing to issue the preliminary injunction. " 'Preliminary injunctive relief is a drastic remedy [that] is not routinely granted' " ( Sutherland Global Servs., Inc. v. Stuewe, 73 A.D.3d 1473, 1474, 902 N.Y.S.2d 272). In order to prevail on a motion for a preliminary injunction, the moving party has the burden of demonstrating, by clear and convincing evidence, (1) a likelihood of success on the merits, (2) irreparable injury in the absence of injunctive relief, and (3) a balance of equities in its favor ( see Nobu Next Door, LLC v. Fine Arts Hous., Inc., 4 N.Y.3d 839, 800 N.Y.S.2d 48, 833 N.E.2d 191; Emerald Enters. of Rochester v. Chili Plaza Assoc., 237 A.D.2d 912, 656 N.Y.S.2d 1011).
In this case, plaintiff failed to demonstrate by clear and convincing evidence that the employment agreement was enforceable and thus that there was a likelihood of success on the merits. It is well established that agreements by an employee not to compete with his or her employer upon the termination of employment are judicially disfavored because " 'powerful considerations of public policy ... militate against sanctioning the loss of a [person's] livelihood' " ( Reed, Roberts Assoc. v. Strauman, 40 N.Y.2d 303, 307, 386 N.Y.S.2d 677, 353 N.E.2d 590, rearg. denied 40 N.Y.2d 918, 389 N.Y.S.2d 1027, 357 N.E.2d 1033; 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). Thus, "[a] restrictive covenant against a former employee 'will be enforced only if reasonably limited temporally and geographically ..., and then only to the extent necessary to protect the employer from unfair competition [that] stems from the employee's use or disclosure of trade secrets or confidential customer lists' " ( IVI Envtl. v. McGovern, 269 A.D.2d 497, 498, 707 N.Y.S.2d 107, quoting Columbia Ribbon & Carbon Mfg. Co., 42 N.Y.2d at 499, 398 N.Y.S.2d 1004, 369 N.E.2d 4; see Riedman Corp. v. Gallager, 48 A.D.3d 1188, 1189, 852 N.Y.S.2d 510).
Here, plaintiff failed to establish that the information to which defendant was exposed during his tenure as plaintiff's "Vice President, Sales, Global and Strategic Accounts" qualifiesas a trade secret or that specific enforcement of the employment agreement is necessary to protect plaintiff's legitimate interests ( see Natural Organics, Inc. v. Kirkendall, 52 A.D.3d 488, 489-490, 860 N.Y.S.2d 142, lv. denied 11 N.Y.3d 707, 868 N.Y.S.2d 598, 897 N.E.2d 1083). Although plaintiff alleged that defendant downloaded confidential company documents after his termination, plaintiff failed to set forth evidence establishing that defendant misappropriated confidential information. Plaintiff also failed to establish that its customer lists, pricing information, and "product roadmaps" constitute trade secrets ( see Buhler v. Michael P. Maloney Consulting, 299 A.D.2d 190, 191, 749 N.Y.S.2d 867; Briskin v. All Seasons Servs., 206 A.D.2d 906, 615 N.Y.S.2d 166; Walter Karl, Inc. v. Wood, 137 A.D.2d 22, 27, 528 N.Y.S.2d 94). M...
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...There is no such clause in the Agreement herein. Contrary to defendants' contention, this Court's decision in Eastman Kodak Co. v. Carmosino, 77 A.D.3d 1434, 909 N.Y.S.2d 247 did not extend the Post holding to establish a per se rule that involuntary termination without cause renders all re......
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