ARMBRUSTER CAPITAL MANAGEMENT INC PLAINTIFF APPELLANT RESPONDENT v. ELIZABETH BARRETT AND APEX WEALTH ADVISERS LLC FORMERLY KNOWN AS APEX ADVISERS LLC DEFENDANTS RESPONDENTS APPELLANTS (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff Armbruster Capital Management, Inc., appeals and defendants Elizabeth Barrett and Apex Wealth Advisers, LLC, formerly known as Apex Advisers, LLC, cross-appeal from an order that, inter alia, denied plaintiff's motion to the extent that it sought partial summary judgment on its breach of contract cause of action as to liability and a declaration and denied defendants’ cross-motion to the extent that it sought summary judgment on their first counterclaim. We reject plaintiff's contention on its appeal that Supreme Court erred in refusing to grant it partial summary judgment on its breach of contract cause of action as to liability. Even assuming, arguendo, that plaintiff met its initial burden, we conclude that defendants raised questions of fact concerning the enforceability of the restrictive covenants in the asset purchase agreement and whether any purported breach by defendants was so substantial that it defeated the object of the parties in making the contract (see Frank v Metalico Rochester, Inc., 174 AD3d 1407, 1411 [4th Dept 2019]; Lenel Sys. Intl., Inc. v Smith, 34 AD3d 1284, 1285 [4th Dept 2006]; see also Reed, Roberts Assoc. v Strauman, 40 NY2d 303, 307 [1976], rearg denied 40 NY2d 918 [1976]). We have reviewed plaintiff's remaining contentions raised in its appeal as well as defendants’ contentions raised in their cross-appeal and, in light of the issues of fact, we conclude that none warrants modification or reversal of the order.

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court