97 A.D.2d 369 | N.Y. App. Div. | 1983
Lead Opinion
— Motion granted insofar as to recall and vacate the order of this court entered on August 11, 1983 and the memorandum decision (96 AD2d 784) filed therewith, and to substitute therefor a new order and memorandum released simultaneously with the order on this motion. Order entered February 4,1983 in Supreme Court, New York County (Rena K. Uviller, J.), which granted plaintiff’s motion for a preliminary injunction modified, on the law and the facts and in the exercise of discretion, and the injunction is limited to those clients of plaintiff who were never formerly clients of defendant or his father, and the order is otherwise affirmed, without costs. Plaintiff, a nationwide accounting firm with 700 partners, seeks to enjoin defendant, a former partner, from competing with it for the business of clients defendant serviced while in plaintiff’s employ. It is alleged that the seven clients Black has approached are worth $150,000 in fees, with at least three of them already switching their $36,500 worth of business to defendant. The noncompetition clause which plaintiff wants enforced is part of the October 1, 1979 revision of Arthur Young’s articles of partnership. Defendant signed it then, when he was a partner. The contested clause states in pertinent part: “I further agree that for a period of two years after I withdraw from the firm that I will not without its prior written consent, provide professional services such as those provided by the firm to any client of the firm, or for the purpose of providing such professional services, solicit or participate in the solicitation of any client of the firm, which was a client of the firm any time during the twelve months prior to my withdrawal and for whom I provided any service in the five year period preceding my withdrawal. I further agree that prior to my withdrawal, without prior written permission of the firm, I will not discuss with any client of the firm my intention to withdraw from the firm (except if withdrawal is for retirement or to enter a business which does not compete with the firm) nor will I solicit any such client.” Defendant states that he was fired and did not “withdraw”. In addition, we note that there is no allegation that defendant was privy to trade secrets or insider information, or that his services as -an accountant are special, .unique or extraordinary. (See, e.g., Columbia Ribbon & Carbon Mfg. Co. v A-l-A Corp., 42 NY2d 496.) While “[e]ach case must, of course, depend, to a great extent, upon its own facts” (Karpinski v Ingrasci, 28 NY2d 45, 49), it is not at all clear that the plaintiff would probably succeed on the merits. {Reed, Roberts Assoc, v Strauman, 40 NY2d 303; Lynch v Bailey,
Dissenting Opinion
I would affirm the order of Special Term enjoining defendant from soliciting or providing professional accounting services to former clients of plaintiff. This is a classic case for granting a preliminary injunction to enforce a restrictive covenant. The covenant which plaintiff sought to enforce is contained in a letter agreement dated October 1,1979, and reads in pertinent part: “In consideration of the benefits which will inure to me as a partner in, or a withdrawn partner of* * * I agree with the firm as follows *** I agree that I shall not use such information concerning the firm’s business or trade secrets which I have acquired * * * Moreover I further agree that for a period of two years after I withdraw from the firm that I will not without its prior written consent, provide professional services such as those
Concurrence Opinion
I agree that the preliminary injunction should be modified to the extent of excluding from its scope those clients of the plaintiff who had been brought into the firm by the defendant and his father when they joined it, and those clients which the defendant himself thereafter brought into the firm. Special Term was clearly correct in the conclusion that the noncom-petition clause in issue is on its face narrowly drawn, and one that in the usual situation would be enforceable. The problem arises from the undoubted fact that enforcement of the clause in accordance with its terms against this defendant will cause him very serious economic damage. The defendant is a lifelong resident of Baltimore who has practiced accounting in that city all his professional life. It is clear that he was required to withdraw from plaintiff firm because of dissatisfaction with his performance. To deny defendant the right to service those clients who had been developed over many years by his father and himself is to inflict on him a grievous professional injury indeed. I appreciate that it has been strongly argued that undue hardship is not a circumstance that may appropriately be relied upon to render invalid a noncompetition agreement that would otherwise be valid. (See Handler and Lazaroff, Restraint of Trade and the Restatement [Second] of Contracts, 57 NYU L Rev 669, 717-739; but cf. Restatement, Contracts 2d, § 188, subd [1], par [b].) But that issue appears not to have been definitively resolved in this State, and I see no reason for our deciding it at this stage of the litigation. Whatever conclusion may ultimately be reached after a trial, it seems to me that a balancing of the equities here clearly weighs against the issuance of a preliminary injunction to the extent to which it denies the defendant the right to serve what are in effect his clients. As to all other clients of the plaintiff firm, I agree that there is no valid reason not to sustain the injunction that was issued.