844 N.Y.S.2d 810 | N.Y. App. Div. | 2007
Appeal from a judgment of the Supreme Court, Monroe County (Kenneth R. Fisher, J.), entered November 1, 2006. The judgment, following an inquest on damages, awarded $552,375.69 in favor of defendant Gary W Rogers and against plaintiff on that defendant’s counterclaim.
It is hereby ordered that the judgment so appealed from be and the same hereby is unanimously reversed on the law without costs, the motion for summary judgment is denied in its entirety and the complaint is reinstated.
Memorandum: This case was before us on a prior appeal (Jasco Tools v Rogers, 303 AD2d 944 [2003]), wherein we noted that plaintiff commenced an action against three of its former employees alleging that they had engaged in a joint effort to divert a major contract vendee from plaintiff, resulting in plaintiff’s loss of business with that contract vendee after plaintiffs initial five-year contract had expired. That action has since been consolidated with another action commenced by plaintiff against two corporations. On this appeal, we are concerned only with the liability of defendant Gary W Rogers, plaintiffs former president, who counterclaimed for payments due under an “Employment Termination, Consulting and Stock Purchase Agreement” between plaintiff and Rogers. On the prior appeal, we determined that, “[b]ecause only minimal discovery had been conducted prior to the motions [for summary judgment dismissing the complaint], summary judgment with respect to all but the sixth cause of action should have been denied with leave to renew after the completion of discovery,” and we therefore modified the order in that appeal accordingly (id. at 946).
We conclude on this appeal that, because plaintiff established
