Family Affair Haircutters, Inc. v. Detling

• Decision Date: 15 April 1985
• Citation: 488 N.Y.S.2d 204,110 A.D.2d 745
• Parties: FAMILY AFFAIR HAIRCUTTERS, INC., Respondent, v. Nina DETLING, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 204

488 N.Y.S.2d 204

110 A.D.2d 745

FAMILY AFFAIR HAIRCUTTERS, INC., Respondent, v. Nina DETLING, Appellant.

Supreme Court, Appellate Division Second Department.

April 15, 1985.

E. Thomas Boyle, P.C., Smithtown, for appellant.

Before MOLLEN, P.J., and MANGANO, THOMPSON and O'CONNOR, JJ.

MEMORANDUM DECISION.

In an action, inter alia, for a permanent injunction based on the alleged breach of a covenant not to compete contained in an employment agreement, defendant appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County dated June 1, 1984, as granted that branch of plaintiff's motion which sought a preliminary injunction enjoining defendant "from continuing her employment as a haircutter" with one of plaintiff's competitors, "and from contacting clients of [the plaintiff and] soliciting business from them".

Order reversed insofar as appealed from, with costs, and that branch of plaintiff's motion which sought a preliminary injunction denied.

Defendant, a licensed hairdresser, commenced employment with plaintiff at its salon in Shirley, in October 1981. In April 1983 defendant and plaintiff entered into an employment agreement which contained, inter alia, a prohibition against disclosure of plaintiff's customer list, and a covenant not to compete with plaintiff after termination of defendant's employment. Specifically, the employment agreement provided, in relevant part, as follows:

"4. DISCLOSURE OF INFORMATION: The Employee recogni[z]es and acknowledges that the list of the Employer[']s customers, as it may exist from time to time, is a valuable, special and unique asset of the Employer[']s business. Accordingly, the Employee will not, during or after the term of his employment, disclose the list of the Employer[']s customers or any part thereof to any other person, firm, corporation or any other entity for any [reason] or purpose whatsoever * * *

"6. TERMINATION OF EMPLOY: Either the Employer or the Employee may without cause terminate this Agreement on one week[']s notice to the other party. Upon such termination, [if] the Employee is employed hereunder for a period of [thirty] (30) days or more and the Agreement is thereafter terminated by either the Employer or the Employee, the following restrictive covenant shall be applicable: for a period of [two] (2) years after the termination of this Agreement, the Employee will not within a radius of five (5) miles from the present place of employment, directly or indirectly, be employed by any haircutting shop, beauty shop or beauty salon or in any way own, manage, operate, control, participate in or in any way be connected in any manner with any business similar to the type of business conducted by the Employer at the time of the termination of this Agreement. In the [event] of any actual or threatened breach by the Employee of the provisions of this paragraph, the Employer shall be entitled to an injunction restraining such acts on the part of the Employee. The Employer may also be entitled to pursue any other remedies available to the Employer for such breach or threatened breach including the recovery [of] damages".

Defendant left plaintiff's employ in January 1984 and began to work for a competitor of plaintiff whose establishment was also located in Shirley, approximately two miles away.

Thereafter, plaintiff commenced the instant action against defendant. In its first cause of action, plaintiff sought a permanent injunction prohibiting defendant from working for the plaintiff's competitor. In a second cause of action, plaintiff alleged that it had suffered "pecuniary damage" from defendant's employment with its competitor. Plaintiff also alleged in its third and fourth causes of action, respectively, that (1) defendant, during her employment with plaintiff, had willfully removed approximately 300 "perm cards" which constituted the only list that plaintiff had of its clients' names, telephone numbers and addresses, and (2) defendant was presently soliciting the clients of plaintiff "for the purpose of generating business" for plaintiff's competitor and the defendant. With respect to these latter two causes of action, plaintiff sought damages as well as a directive to defendant to return the " 'perm cards' or the information contained thereon".

In her answer, defendant interposed a general denial and asserted numerous affirmative defenses including, inter alia, (1) that she signed the employment agreement "under the threat and duress of being fired", and (2) that the employment agreement was "unreasonable and unconscionable".

Upon commencing this action, plaintiff moved for (1) a preliminary injunction enjoining defendant from continuing her employment as a haircutter at plaintiff's competitor and "from contacting clients of [the plaintiff and] soliciting business from them", and (2) "an order directing the defendant to return certain customer cards belonging to the plaintiff".

In her opposing papers, defendant denied stealing plaintiff's customer cards or soliciting plaintiff's customers. Defendant also alleged without contradiction that (1) her prior position with plaintiff had already been filled and (2) plaintiff operated five shops throughout Suffolk County and averaged a gross income of between $2,000 to $2,500 per week at the salon in Shirley. Finally, defendant set forth in detail her own modest financial circumstances which she claimed would become perilous if she was forced, through a preliminary injunction, to cease working in the area.

Special Term granted plaintiff's motion for a preliminary injunction to the extent of "enjoining the defendant * * * from continuing her employment" with plaintiff's competitor and "from contacting clients of [the plaintiff a...