STIEPLEMAN COVERAGE CORP v. RAIFMAN (1999)

In an action, inter alia, to recover damages for breach of an employment contract and tortious interference with contract, the plaintiff appeals from an order of the Supreme Court, Nassau County (Franco, J.), entered December 31, 1997, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The defendant Elizabeth Raifman's employment agreement with the plaintiff insurance agency, Stiepleman Coverage Corp. (hereinafter Stiepleman), contained a covenant not to compete.   The covenant stated, inter alia, that for a period of two years after Raifman left Stiepleman's employ, she could not work for an agency within a 50-mile radius from Rockville Centre, New York, which solicits or accepts a client of Stiepleman.   In September 1996 Raifman ceased working for Stiepleman and went to work in a similar capacity for another insurance agency, the codefendant, LaMere Associates (hereinafter LaMere).   In January 1997 an account serviced by Raifman during her employment with Stiepleman became a client of LaMere.   Stiepleman commenced the instant action predicated on Raifman's alleged violation of the covenant not to compete and LaMere's alleged tortious interference with the employment contract.

 Restrictive covenants in employment agreements, such as the noncompetition clause herein, will be enforced if reasonably limited temporally and geographically, and to the extent necessary to protect the employer's use of trade secrets or confidential customer information (see, Columbia Ribbon & Carbon Mfg. Co. v. A-1-A Corp., 42 N.Y.2d 496, 398 N.Y.S.2d 1004, 369 N.E.2d 4;  Gelder Med. Group v. Webber, 41 N.Y.2d 680, 394 N.Y.S.2d 867, 363 N.E.2d 573;  Reed, Roberts Assocs. v. Strauman, 40 N.Y.2d 303, 386 N.Y.S.2d 677, 353 N.E.2d 590;  Cosmos Forms v. American Computer Forms, 193 A.D.2d 577, 596 N.Y.S.2d 862).   The instant noncompetition clause was reasonable, and there exist issues of fact as to whether Raifman violated the covenant by making use of Stiepleman's confidential client information, or whether she was an extraordinary or unique employee (see, Gelder Med. Group v. Webber, supra;  HBD Inc. v. Ryan, 227 A.D.2d 448, 642 N.Y.S.2d 913;  Merrell Benco Agency v. Safrin, 231 A.D.2d 614, 647 N.Y.S.2d 952;  Greenwich Mills Co. v. Barrie House Coffee Co., 91 A.D.2d 398, 459 N.Y.S.2d 454;  Victor Temporary Servs. v. Slattery, 105 A.D.2d 1115, 482 N.Y.S.2d 623).

In light of this determination, as well as the circumstances which resulted in the subject account switching from Stiepleman to LaMere, it is premature at this juncture to dismiss Stiepleman's cause of action against LaMere alleging tortious interference with contract (see, Durante Bros. Constr. Corp. v. College Point Sports Assn., 207 A.D.2d 379, 615 N.Y.S.2d 455;  Stanley Tulchin Assocs. v. Vignola, 186 A.D.2d 183, 587 N.Y.S.2d 761).

Accordingly, the defendants were not entitled to summary judgment.

MEMORANDUM BY THE COURT.