Technology For Measurement Inc. v. Briggs, 01-01898
| Decision Date | 01 February 2002 |
| Docket Number | 4,01-01898 |
| Parties | TECHNOLOGY FOR MEASUREMENT, INC.,, v GARY J. BRIGGS,CA 01-01898 SUPREME COURT OF THE STATE OF NEW YORK APPELLATE DIVISION: FOURTH JUDICIAL DEPARTMENT Decided on |
| Court | New York Supreme Court — Appellate Division |
BREEZE AND RHODES-DEVEY, P.C., SLINGERLANDS (MICHAEL RHODES-DEVEY OF COUNSEL), FOR DEFENDANT-APPELLANT.
LOFTUS & ROSBROOK, SKANEATELES (WILLIAM B. ROSBROOK OF COUNSEL), FOR PLAINTIFF-RESPONDENT.
Appeal from an order of Supreme Court, Onondaga County (Murphy, J.), entered November 29, 2000, which, inter alia, denied defendant's motion to dismiss the complaint.
It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously modified on the law by denying plaintiff's cross motion in its entirety and as modified the order is affirmed without costs.
Plaintiff, a manufacturer's representative, commenced this action seeking a permanent injunction to enforce a covenant not to compete and damages for the alleged breach of that covenant. Defendant moved to dismiss the complaint pursuant to CPLR 3211 (a) (1) and (7), and plaintiff cross-moved for summary judgment seeking a permanent injunction. In a written decision, Supreme Court denied defendant's motion and granted plaintiff's cross motion to the extent of granting plaintiff a preliminary injunction, but the court's order fails to mention plaintiff's cross motion. "Where there is a conflict between an order and a decision, the decision controls" (Matter of Edward V., 204 A.D.2d 1060, 1061).
The court properly denied defendant's motion. With respect to that part of the motion seeking dismissal of the complaint based on documentary evidence (see, CPLR 3211 [a] [1]), "dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law" (Leon v Martinez, 84 N.Y.2d 83, 88; see, Roth v Goldman, 254 A.D.2d 405, 406). Here, the complaint alleges that defendant breached the parties' employment agreement, and the documentary evidence upon which defendant relies is the employment agreement itself. Defendant contends that his employment with a different employer selling to plaintiff's customers within his former geographic sales territory does not constitute a violation of the agreement. We disagree. Section XV (4) (a) (1) of the employment agreement prohibits defendant from acting as a sales agent "for the firms and companies which [plaintiff] currently has under contract as set forth in Schedule B". Schedule B lists sales territories that include Massachusetts, Rhode Island, and Connecticut. With respect to that part of the motion seeking dismissal based on the failure to state a cause of action, defendant also failed to establish his entitlement to dismissal on that ground (see,...
To continue reading
Request your trial