Wilensky v. JRB Marketing & Opinion Research, Inc.
| Decision Date | 01 February 1988 |
| Parties | Barry WILENSKY, Appellant, v. JRB MARKETING & OPINION RESEARCH, INC., Respondent. |
| Court | New York Supreme Court — Appellate Division |
Lester Schwab Katz & Dwyer, New York City (Eric A. Portuguese and Steven B. Prystowsky, of counsel), for appellant.
Flower & Plotka, Bay Shore (Karl Brodzansky, of counsel), for respondent.
Before MANGANO, J.P., and BROWN, HARWOOD and BALLETTA, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for breach of contract, and for an accounting, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Robbins, J.), dated October 8, 1986, as granted those branches of the defendant's motion which were for a protective order striking the plaintiff's interrogatories numbered 10, 11, 12, 13 and 14, and items numbered 3, 4, 5, 6, 7, 10, 11, and 12 of the plaintiff's notice to produce.
ORDERED that the order is modified by (1) deleting the provisions thereof which granted those branches of the defendant's motion which were for a protective order striking the plaintiff's interrogatories numbered 10, 11, 12, 13 and 14, and items numbered 3, 4, 5, 6, 7, and 12 of the plaintiff's notice to produce and substituting therefor provisions denying those branches of the motion, and (2) adding a provision limiting items 10 and 11 of the plaintiff's notice to produce to the documents demanded pertaining to clients procured and serviced by the plaintiff during the periods set forth in the complaint; as so modified, the order is affirmed insofar as appealed from, with costs to the plaintiff, and the defendant's time to answer the interrogatories in question, and comply with the plaintiff's notice to produce, as limited by this court, is extended until 30 days after service upon it of a copy of this decision and order, with notice of entry.
The defendant is engaged in the business of conducting marketing and research studies on behalf of its clients. The plaintiff was employed by the defendant from 1983 until his March 17, 1986 resignation. The plaintiff claims that, by oral employment contract, the defendant agreed to pay him a sum representing 45% of the "margin" he produced, constituting gross sales less out-of-pocket expenses. He also claims that in early 1985 the oral contract was modified to provide, as additional compensation, an amount equal to 3% of the defendant's gross annual profits.
The plaintiff's causes of action are premised on the defendant's failure to pay $3,500 of the 45% margin for the last trimester of 1985, its failure to pay the 45% margin for the period from January 1986 to March 17, 1986, which the plaintiff alleges is an undetermined sum of at least $40,000, and its failure to pay an "indeterminate" sum representing 3% of the defendant's gross profits for the period May 1, 1985 to March 17, 1986. The plaintiff, whose pre-action motion for disclosure (see, CPLR 3102) was denied because the disclosure then sought was pertinent only on the issue of damages, seeks judgment for $3,500, for 45% of the margin for each of his projects, and for an amount representing 3% of the defendant's gross profits. He also seeks an accounting of the money the defendant received from projects the plaintiff procured and serviced and of the defendant's gross profits. The defendant contends that the plaintiff was to be compensated by salary only, and counterclaims for monetary and injunctive relief, and an accounting. It alleges in its third counterclaim that it developed "customer lists, lists of customer contacts, pricing lists, cost data, and other information of a confidential nature", constituting trade secrets which it claims that the plaintiff improperly disclosed when setting up a competing business.
By interrogatories numbered 10 through 14, and by items 3...
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Wilensky v. JRB Marketing & Opinion Research, Inc.
...disclosure sought by the plaintiff and resisted by the defendant need not be repeated in detail here (see, Wilensky v. JRB Mktg. & Opinion Research, 137 A.D.2d 520, 524 N.Y.S.2d 264). We note, however, that on the prior appeal, the defendant's resistance to the plaintiff's 1986 notice to pr......
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D. Standard for a Protective Order
...v. Pei-Fei Lee, M.D., P.C., 192 A.D.2d 1008, 597 N.Y.S.2d 250 (3d Dep't 1993).[887] Wilensky v. JRB Mktg. & Opinion Research, Inc., 137 A.D.2d 520, 524 N.Y.S.2d 264 (2d Dep't 1988).[888] Rooney v. Hunter, 26 A.D.2d 891, 274 N.Y.S.2d 376 (4th Dep't 1966).[889] Garafano v. St. Jerome's Health......
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D. Standard For A Protective Order
...v. Pei-Fei Lee, M.D., P.C., 192 A.D.2d 1008, 597 N.Y.S.2d 250 (3d Dep't 1993).[904] Wilensky v. JRB Mktg. & Opinion Research, Inc., 137 A.D.2d 520, 524 N.Y.S.2d 264 (2d Dep't 1988).[905] Rooney v. Hunter, 26 A.D.2d 891, 274 N.Y.S.2d 376 (4th Dep't 1966).[906] Garafano v. St. Jerome's Health......