FIRST AMERICAN TITLE INSURANCE COMPANY OF NEW YORK INC v. BENCHMARK TITLE AGENCY LLC (2008)

Order, Supreme Court, New York County (Helen E. Freedman, J.), entered January 8, 2007, which granted defendants' motion for partial summary judgment, dismissing the first, second and fourth causes of action, unanimously affirmed, with costs.

The restrictive covenants not to compete or solicit, set forth in the contract of sale, had expired.   Furthermore, the expressly negotiated covenant not to compete superseded the normally implied common-law covenant, particularly where, as here, the customers are generally identifiable, and enjoining solicitation of former clients after the negotiated time period would be tantamount to preventing defendants from acting as a title insurer in Westchester County (see MGM Court Reporting Serv. v. Greenberg, 74 N.Y.2d 691, 543 N.Y.S.2d 376, 541 N.E.2d 405 [1989];  Titus & Donnelly v. Poto, 205 A.D.2d 475, 614 N.Y.S.2d 10 [1994] ).

Defendants met their burden of demonstrating entitlement to summary judgment on the issue of claimed confidential documents and related violation of fiduciary duty, and plaintiff did not meet its burden of demonstrating the existence of issues of fact to warrant a trial (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).

We have considered plaintiff's remaining arguments and find them without merit.