GRASSI CO CPAS v. HONKA (2020)

Order, Supreme Court, New York County (Tanya R. Kennedy, J.), entered on or about January 16, 2019, which denied defendant's pre-answer CPLR 3211(a)(7) motion to dismiss the complaint, unanimously affirmed, with costs.

When assessing a CPLR 3211(a)(7) motion to dismiss, the pleading is to be afforded a liberal construction, the facts as alleged in the complaint are accepted as true, the plaintiff is accorded the benefit of every possible favorable inference, and the court determines only whether the facts as alleged fit within any cognizable legal theory (see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ).  Further, a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint, and “the criterion is whether the proponent of the pleading has a cause of action, not whether [they have] stated one” (id. [internal quotation marks and citations omitted] ).

Under these standards, the complaint sufficiently alleges claims for breach of the employment agreement's non-solicitation provision and tortious interference.

Defendant's attacks on the reasonableness, breadth, legality, and enforceablity of the non-recruitment provision are all premature at this early stage of the litigation, as they are each fact-based determinations (accord BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 690 N.Y.S.2d 854, 712 N.E.2d 1220 [1999];  Karpinski v. Ingrasci, 28 N.Y.2d 45, 49, 320 N.Y.S.2d 1, 268 N.E.2d 751 [1971] ).