173 A.D.2d 344 | N.Y. App. Div. | 1991
Order and judgment, Supreme Court, New York County (Edward H. Lehner, J.), entered July 19, 1990 which granted summary judgment in favor of defen
Plaintiff sold his business to defendant’s predecessor in March 1977. As part of the transaction, he entered into an employment agreement. The employment agreement and the purchase agreement contained restrictive covenants barring plaintiff from similar employment ”[f]or a period of three (3) years immediately following the termination of his employment by the Company, however caused”. Plaintiff resigned in September 1981, but was rehired in April 1982 and worked until October 1986. In November 1986, he entered into an employment contract with a competitor. Letters were sent to the competitor and plaintiff warning them that they were in violation of the restrictive covenant and threatening legal action should plaintiff’s employment not be terminated. Plaintiff was forced to resign, and later return to defendant’s employ from January 1987 to July 1987. Each time plaintiff returned to defendant’s employ, his period of non-employment was treated as a leave of absence, allowing him continuity of benefits.
Plaintiff commenced this action asserting two causes of action, the first for tortious interference with contractual relations, and the second seeking a declaratory judgment that the restrictive covenant was null and void and unenforceable.
The claim for tortious interference was properly dismissed, on defendant’s motion for summary judgment, as plaintiff’s contract with the competitor was terminable at will. Plaintiff was thus required to set forth probative evidence of malice, or the use of wrongful means by the defendants (Guard-Life Corp. v Parker Hardware Mfg. Corp., 50 NY2d 183, 191; Alexander & Alexander v Fritzen, 147 AD2d 241, 250). The sending of the letter and the threat of legal action was not duress (Edison Stone Corp. v 42nd St. Dev. Corp., 145 AD2d 249, 254). "[I]t is not an actionable wrong for one in good faith to make plain to whomsoever he will that it is his purpose to insist upon what he believes to be his legal rights, even though he may misconceive what those rights are” (Kaplan v Helenhart Novelty Corp., 182 F2d 311, 314).
The enforcibility of a restrictive covenant in a written employment agreemént under the statute of frauds following oral or implicit extensions of employment after the stated term of the agreement depends on the intent of the parties as