JOINT EFFORT MEDICAL v. DUNKELMAN (1997)

In an action to recover damages for breach of an employment contract, the defendant appeals from an order of the Supreme Court, Orange County (Slobod, J.), dated January 28, 1997, which, inter alia, denied his cross motion to dismiss the amended complaint for failure to state a cause of action.

ORDERED that the order is reversed, on the law, with costs, the defendant's cross motion is granted, and the amended complaint is dismissed.

The amended complaint alleges only that the defendant solicited clients of the plaintiff in violation of a nonsolicitation clause contained in the defendant's employment contract with the plaintiff.   However, it is undisputed that the clause relied on is not restricted as to time or place.   Moreover, there is no allegation that the defendant improperly used any of the plaintiff's trade secrets or a protectable customer list.   Under the circumstances of this case, such allegations are insufficient, as a matter of law, to state a cause of action for breach of a nonsolicitation clause contained in an employment contract (see, Greenwich Mills Co., Inc. v. Barrie House Coffee Co., 91 A.D.2d 398, 459 N.Y.S.2d 454;  see also, Reed, Roberts Assocs. Inc. v. Strauman, 40 N.Y.2d 303, 386 N.Y.S.2d 677, 353 N.E.2d 590;  Karpinski v. Ingrasci, 28 N.Y.2d 45, 320 N.Y.S.2d 1, 268 N.E.2d 751;  Investor Access Corp. v. Doremus & Co., 186 A.D.2d 401, 588 N.Y.S.2d 842).

The parties' remaining contentions are academic in light of this determination.

MEMORANDUM BY THE COURT.