Schneider Leasing Plus, Inc. v. Stallone

• Decision Date: 22 April 1991
• Citation: Schneider Leasing Plus, Inc. v. Stallone, 172 A.D.2d 739, 569 N.Y.S.2d 126 (N.Y. App. Div. 1991)
• Parties: SCHNEIDER LEASING PLUS, INC., Appellant, v. Frank STALLONE, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 126

569 N.Y.S.2d 126

172 A.D.2d 739

SCHNEIDER LEASING PLUS, INC., Appellant, v. Frank STALLONE, et al., Respondents.

Supreme Court, Appellate Division Second Department.

April 22, 1991.

Bogut Chetkof & O'Brien, Jericho (Kalman I. Nulman and James F. O'Brien, of counsel), for appellant.

W. Adam Mandelbaum, Mineola, for respondents Frank Stallone, Kenneth Hagen and StepKing Plus, Inc.

Rivkin, Radler, Dunne & Bayh, Uniondale (Evan H. Krinick and Carol R. Finocchio, of counsel), for respondents Cory Food Services, Inc., Robert Fidler and Judson Kleinman.

Before SULLIVAN, J.P., and HARWOOD, MILLER and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for breach of fiduciary duty and for injunctive relief, the plaintiff appeals (1) from so much of an order of the Supreme Court, Nassau County (Collins, J.), dated October 3, 1989, as denied its motion to preliminarily enjoin the defendants Frank Stallone, Kenneth Hagen and StepKing Plus, Inc., from soliciting or providing services for the plaintiff's customers; and (2) from so much of an order of the same court, entered January 10, 1990, as granted the motion of the defendants Cory Food Services Ind. a/k/a ARA/Cory Refreshment Services of New York, Robert Fidler and Judson Kleinman to dismiss the complaint pursuant to CPLR 3211(a)(7) and for summary judgment pursuant to CPLR 3211(c) and dismissed the complaint as against them.

ORDERED that the orders are affirmed insofar as appealed from, with one bill of costs.

The record reveals that the plaintiff Schneider Leasing Plus, Inc. (hereinafter Schneider) is engaged, inter alia, in the business of repairing commercial vehicles. This action arises from the conduct of the defendants Frank Stallone and kenneth Hagen, former employees of Schneider, in incorporating a competing business known as StepKing Plus, Inc. (hereinafter

StepKing) while still in Schneider's employ. Schneider's complaint alleges, among other things, that Stallone and Hagen, in breach of their fiduciary duty as employees of Schneider, misappropriated confidential files, customer lists and information of Schneider and solicited various customers of Schneider to build up a clientele for StepKing. The complaint further alleges that the other named defendants, including Cory Food Services Ind. a/k/a ARA/Cory Refreshment Services of New York, Robert Fidler and Judson Kleinman (hereinafter the Cory defendants) knowingly encouraged and participated in the breach of fiduciary duty by Stallone and Hagen. Schneider moved for a preliminary injunction to prohibit Stallone, Hagen and

StepKing from further soliciting or servicing any of Schneider's present or former customers pending the resolution of the action. The Supreme Court denied the motion. Thereafter, the Cory defendants moved to dismiss the first and third causes of action of the verified complaint insofar as asserted against them for failure to state a cause of action, and for summary judgment dismissing the complaint insofar as asserted against them. The Supreme Court granted the motion in its entirety and dismissed the complaint as against the Cory defendants. We now affirm these orders insofar as appealed from.

It is well settled that a preliminary injunction will not issue unless the movant demonstrates (1) a likelihood of ultimate success on the merits; (2) irreparable injury absent the granting of injunctive relief, and (3) a balance of the equities in the movant's favor (see, Zonghetti v. Jeromack, 150 A.D.2d 561, 541 N.Y.S.2d 235; Koursiaris v. Astoria N. Dev., 143 A.D.2d 639, 532 N.Y.S.2d 916). Moreover, "the remedy of granting a preliminary injunction is a drastic one which should be used sparingly" (McLaughlin, Piven, Vogel v. Nolan & Co., 114 A.D.2d 165, 172, 498 N.Y.S.2d 146), and which will not be granted absent a showing that there is a clear right to such relief on the undisputed facts...