ONSITE COMPANIES INC v. COMFORT

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Supreme Court, Appellate Division, Fourth Department, New York.

ONSITE COMPANIES, INC., Formerly Known as Aerotek, Inc., Plaintiff-Respondent, v. Todd C. COMFORT and Mploy, Inc., Defendants-Appellants.

Decided: September 30, 2005

PRESENT:  GREEN, J.P., SCUDDER, KEHOE, AND LAWTON, JJ. Boylan, Brown, Code, Vigdor & Wilson, LLP, Rochester (David K. Hou of Counsel), for Defendants-Appellants. Bond, Schoeneck & King, PLLC, Syracuse (Thomas R. Smith of Counsel), for Plaintiff-Respondent.

 We note at the outset that the parties agree that this employment-related dispute is governed by Maryland law, although they evidently further agree that the law of Maryland and that of New York is fundamentally the same with respect to this dispute.   We conclude that Supreme Court properly granted that part of plaintiff's motion for partial summary judgment on liability on the first cause of action alleging that Todd C. Comfort (defendant) breached his duty of loyalty to plaintiff and properly denied that part of defendant's cross motion for summary judgment dismissing that cause of action.   Plaintiff established as a matter of law that defendant, while employed by plaintiff, usurped corporate resources, opportunities, and profits for his own benefit or that of defendant Mploy, Inc. (see Western Elec. Co. v. Brenner, 41 N.Y.2d 291, 295, 392 N.Y.S.2d 409, 360 N.E.2d 1091;  Lamdin v. Broadway Surface Adv. Corp., 272 N.Y. 133, 138-139, 5 N.E.2d 66;  Bronx-Lebanon Hosp. Ctr. v. Wiznia, 284 A.D.2d 265, 265-266, 726 N.Y.S.2d 847, lv. dismissed 97 N.Y.2d 653, 737 N.Y.S.2d 53, 762 N.E.2d 931;  Maritime Fish Prods. v. World-Wide Fish Prods., 100 A.D.2d 81, 87-88, 474 N.Y.S.2d 281, appeal dismissed 63 N.Y.2d 675;  see also Insurance Co. of N. Am. v. Miller, 362 Md. 361, 379-383, 765 A.2d 587, 597-599;  Maryland Metals v. Metzner, 282 Md. 31, 37-38, 382 A.2d 564, 567-568).   Defendant failed to raise an issue of material fact warranting denial of that part of the motion with respect to the first cause of action (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

 The court also properly denied those parts of defendant's cross motion for summary judgment dismissing the second through fourth causes of action as well as the sixth cause of action insofar as it is asserted against defendant.   Given the express language of the employment agreement, plaintiff did not abrogate the employment agreement when it unilaterally altered the conditions of defendant's employment.   The restrictive covenants, insofar as plaintiff seeks to enforce them, are not unreasonable as a matter of law in terms of their geographic and temporal scope (see Battenkill Veterinary Equine v. Cangelosi, 1 A.D.3d 856, 858, 768 N.Y.S.2d 504;  HBD Inc. v. Ryan, 227 A.D.2d 448, 448-449, 642 N.Y.S.2d 913;  Uniform Rental Div. v. Moreno, 83 A.D.2d 629, 441 N.Y.S.2d 538;  see generally Gelder Med. Group v. Webber, 41 N.Y.2d 680, 683-685, 394 N.Y.S.2d 867, 363 N.E.2d 573;  see also Holloway v. Faw, Casson & Co., 319 Md. 324, 334-335, 572 A.2d 510, 515;  Ruhl v. F.A. Bartlett Tree Expert Co., 245 Md. 118, 123-124, 225 A.2d 288, 291;   MacIntosh v. Brunswick Corp., 241 Md. 24, 31, 215 A.2d 222, 225).   Further, there are triable issues of fact with respect to whether defendant has used, divulged, or misappropriated confidential information or trade secrets of plaintiff, in violation of his contractual obligations and common-law duty to plaintiff (see Golden Eagle/Satellite Archery v. Eplin, 291 A.D.2d 838, 737 N.Y.S.2d 315;  see also Maryland Metals, 282 Md. at 38, 382 A.2d at 568;   Dworkin v. Blumenthal, 77 Md.App. 774, 779, 551 A.2d 947, 949).

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

MEMORANDUM: