Special Products Manufacturing, Inc. v. DouglassSpecial Products Manufacturing, Inc. v. Douglass
Dеfendant, a highly and uniquely trained representative for Page-Wilson Corporation and its successor, plaintiff, sеrviced hardness-testing machinery. On August 12, 1982 and April 12, 1983, defendant signed two employment agreements which governed the terms аnd conditions of his employment with Page-Wilson and also included restrictive covenants. The first agreement prоhibited defendant, while he was working and for a period of one year immediately following his job termination, from using to Page-Wilson’s detriment any customer lists or other intellectual property acquired from his job; the second рrevented defendant, for a similar time period, from "accepting] employment from, or serv[ing] in a consulting оr similar capacity with, any other business entity which is at such time engaged in a business similar to the business of Page-Wilson Corporation at the time of termination of [defendant’s] employment”. In April 1987, Canrad Corporation purchased all assets and contractual rights of Page-Wilson, including defendant’s two employment agreements. Plaintiff, a wholly оwned subsidiary of Canrad Corporation, assumed plant operations. Defendant worked for plaintiff until his resignatiоn in February 1988.
Shortly thereafter, plaintiff commenced the instant action. In its complaint, plaintiff alleged that рrior to defendant’s resignation he affixed his name and home telephone number to the machines he serviced, so that the ensuing maintenance calls would reach him personally, and that following his retirement defendant established a competing business and actively solicited plaintiffs clientele. The summons and complaint wеre served on November 9, 1988. On November 29, 1988 defense counsel, an attorney licensed to practice in Pennsylvania, telephoned plaintiffs counsel to request an extension of time in which to file an answer. By letter dated December 6, 1988, plaintiffs counsel stated that hé was not authorized by his client to grant an extension and advised thаt an answer was due no later than December 12, 1988. Defendant did not respond or file an answer.
To prevail on a motion to extend the time in which to serve an answer, a defendant must demonstrate a reasonable excuse for the delay (CPLR 3012 [d]). That has not been done. Whether a proffered excuse is reasonable is a matter within the sound discretion of the trial court (Perellie v Crimson’s Rest.,
Furthermore, no viable mеritorious defense to plaintiff’s complaint is put forth. Although there is no statutory mandate that defendant demonstrate a meritorious defense under CPLR 3012 (d) in cases of short delay (see, 3 Weinstein-KornMiller, NY Civ Prac ¶ 3012.18; cf., CPLR 5015 [a]), the merits of the case are appropriately considered where a lengthy delay effectively transforms the application into a motion to vacate a default (see, Klenk v Kent,
We perceive no merit in defendant’s claims that the employment agreеments are not binding because consideration therefor is lacking or not recited. Nor are we persuаded by the contention that because defendant entered into the agreements with Page-Wilson, they are unеnforceable by plaintiff. In an uncontradicted affidavit based upon personal knowledge, plaintiff’s vicе-president of sales avows that plaintiff acquired all of Page-Wilson’s contract rights, including defendant’s. Defendant’s consent was not required to effectuate this trans
Accordingly, the assignment to plaintiff perpetuated the restrictive covenant provision, the very terms of which defеndant violated without justification. Defendant’s remaining contentions do not merit discussion.
Order affirmed, without costs. Weiss, J. P., Mikoll, Yesawich, Jr., Mercure and Harvey, JJ., concur.