72 A.D.2d 923 | N.Y. App. Div. | 1979
Judgment unanimously affirmed, with costs. Memorandum: Defendant corporations appeal from a judgment after trial declaring covenants not to compete contained in employment contracts with plaintiff to be unenforceable and enjoining defendants’ enforcement thereof. No issue was raised below or on appeal concerning the propriety of declaratory relief. Plaintiff entered into separate written employment contracts for stated salaries on August 21 and August 22, 1968 with each of the corporate defendants. Each contract provided: "Said employment shall begin this date (i.e., the date of the signing of the contract) and subject to the termination provisions herein, shall be for a term ending five (5) years after the date hereof.” The contracts contained no provisions pertaining to extensions or renewals. In addition, each contract contained in paragraph 6 the following clause: "Hubbell [plaintiff] covenants and agrees * * * that during the term of this Agreement and for the three year period following the termination of Hubbell’s employment under this Agreement, he will not at any time, directly or indirectly, for himself or for or in conjunction with (whether through being a controlling person or otherwise), or as agent for or employee of, any person, partnership, association, corporation or entity compete with the Corporation in its product lines and within its marketing area as constituted at the time of such termination. The Corporation agrees to pay to Hubbell an annual sum of $5,000 for three years in consideration of the undertakings contained in this paragraph 6, such payment to commence at the time of such termination.” Plaintiff continued to work in the employ of defendants until May 1, 1978 when his services were terminated. It is undisputed that the employment agreements were never extended or renewed in any written note or memorandum such as would satisfy the Statute of Frauds (General Obligations Law, § 5-701, subd a, par 1). Defen