Union Kol-Flo Corp. v. Basil

Jul 13, 1978
Versions:64 A.D.2d 861
407 N.Y.S.2d 359
1978 N.Y. App. Div. LEXIS 12722

—Order unanimously modified in accordance with memorandum and, as modified, affirmed, with costs, to defendants. Denman, *862J., not participating. Memorandum: Before plaintiff Ernest R Edmunds sold his then solely owned corporation, Edmunds Manufacturing Co., Inc. (EMC), to plaintiff Union Kol-Flo Corporation, he had "bought out” the 25% interest in EMC which was owned by Donald J. Basil and wife. In the contract of sale of his interest in EMC, dated May 23, 1977, defendant Donald J. Basil agreed that for three years he would not remove or copy any information relative to confidential or proprietary equipment, designs, trade secrets, customer lists or product costs or profit information or other records of the company. In November, 1977 plaintiffs instituted this application for an injunction against defendants for violating that agreement, and they applied for a preliminary injunction pending trial. Special Term granted the application in part. The pleadings and affidavits underlying this application are rife with questions of fact, including whether trade secrets or confidential matters are involved (Gaynor & Co. v Stevens, 61 AD2d 775), whether defendants have appropriated any such, and what are the equities between the parties. Except with respect to defendants’ implied representations that plaintiff Union Kol-Flo Corporation has abandoned the field of research products involved herein, plaintiffs have shown no clear right to a permanent injunction, and so should not, preliminarily, be granted the relief which they may not be able to attain at the conclusion of the lawsuit (Brand v Bartlett, 52 AD2d 272, 275; City of Buffalo v Mangan, 49 AD2d 697; Damon Creations v James' Talcott, Inc., 39 AD2d 677; Albini v Solork Assoc., 37 AD2d 835; Rohauer v Killiam, 37 AD2d 547; Barricini, Inc. v Barricini Shoes, 1 AD2d 905). (Appeal from order of Niagara Supreme Court —preliminary injunction.) Present—Cardamone, J. P., Simons, Hancock, Jr., Denman and Witmer, JJ.