Island Sports Physical Therapy, appellant, v. Ann Marie Kane, respondent. (2011)

Argued—March 10, 2011

DECISION & ORDER

In an action to recover damages for fraud and breach of the duty of loyalty, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Whelan, J.), dated December 18, 2009, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

“ ‘[A]n employee owes a duty of good faith and loyalty to an employer in the performance of the employee's duties' ” (30 FPS Prods., Inc. v. Livolsi, 68 AD3d 1101, 1102, quoting Wallack Frgt. Lines v. Next Day Express, 273 A.D.2d 462, 463;  see Lamdin v Broadway Surface Adv. Corp., 272 N.Y. 133;  CBS Corp. v. Dumsday, 268 A.D.2d 350, 353).  “An employee may create a competing business prior to leaving [her or] his employer without breaching any fiduciary duty unless [she or] he makes improper use of the employer's time, facilities or proprietary secrets in doing so” (Schneider Leasing Plus v. Stallone, 172 A.D.2d 739, 741;  see 30 FPS Prods., Inc. v. Livolsi, 68 AD3d at 1102;  Beverage Mktg. USA, Inc. v South Beach Beverage Co., Inc., 58 AD3d 657, 658;  Wallack Frgt. Lines v. Next Day Express, 273 A.D.2d at 463;  CBS Corp. v. Dumsday, 268 A.D.2d at 353).   In general, an employee may solicit an employer's customers only when the employment relationship has been terminated (see A & L Scientific Corp. v. Latmore, 265 A.D.2d 355, 356;  Catalogue Serv. of Westchester v Wise, 63 A.D.2d 895).

“Further, [s]olicitation of an entity's customers by a former employee or independent contractor is not actionable unless the customer list could be considered a trade secret, or there was wrongful conduct by the employee or independent contractor, such as physically taking or copying files or using confidential information” (Starlight Limousine Serv. v. Cucinella, 275 A.D.2d 704, 705;  see Walter Karl, Inc. v. Wood, 137 A.D.2d 22, 27;  see also Leo Silfen, Inc. v. Cream, 29 N.Y.2d 387, 391–392).  “The use of information about an employer's customers which is based on casual memory is not actionable” (Levine v. Bochner, 132 A.D.2d 532, 533;  see Anchor Alloys v Non–Ferrous Processing Corp., 39 A.D.2d 504, 507;  see also Leo Silfen, Inc. v. Cream, 29 N.Y.2d 387).

Here, the defendant established her prima facie entitlement to judgment as a matter of law on the cause of action alleging breach of the duty of loyalty by demonstrating that she did not, while in the employ of the plaintiff, Island Sports Physical Therapy (hereinafter ISPT), use ISPT's time or facilities to form a competing entity (see Beverage Mktg. USA, Inc. v South Beach Beverage Co., Inc., 58 AD3d at 658), or solicit ISPT's patients to patronize that competing entity (see Mal Dunn Assoc. v. Kranjac, 145 A.D.2d 472).   Moreover, the defendant established, prima facie, that ISPT's patient lists did not constitute trade secrets (see Starlight Limousine Serv. v Cucinella, 275 A.D.2d at 705;  see generally Ashland Mgt. v. Janien, 82 N.Y.2d 395, 407).   In opposition, the plaintiff failed to raise a triable issue of fact, including as to whether the defendant or someone acting on her behalf engaged in wrongful conduct (see Starlight Limousine Serv. v Cucinella, 275 A.D.2d at 705).

Additionally, in response to the defendant's prima facie showing of entitlement to judgment as a matter of law on the cause of action alleging fraud, ISPT failed to raise a triable issue of fact (see generally Barclay Arms v. Barclay Arms Assoc., 74 N.Y.2d 644, 647;  Channel Master Corp. v. Aluminum Ltd. Sales, 4 N.Y.2d 403, 406–407).

ISPT's remaining contention is without merit (see CPLR 3212[f];  Sasson v. Setina Mfg. Co., Inc., 26 AD3d 487, 488;  Cruz v. Otis El. Co., 238 A.D.2d 540).

In view of the foregoing, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.

FLORIO, J.P., DICKERSON, LEVENTHAL and BELEN, JJ., concur.

ENTER:

Matthew G. Kiernan

Clerk of the Court