Opinion
December 26, 1991
Appeal from the Supreme Court, Erie County, Francis, J.
Present — Denman, P.J., Boomer, Pine, Lawton and Davis, JJ.
Order unanimously modified on the law and as modified affirmed with costs to defendants, in accordance with the following Memorandum: Supreme Court abused its discretion in granting plaintiff a preliminary injunction enforcing, in part, a restrictive non-competition covenant. It is well settled that such covenants are disfavored by the law (see, Columbia Ribbon Carbon Mfg. Co. v A-1-A Corp., 42 N.Y.2d 496; Reed, Roberts Assocs. v Strauman, 40 N.Y.2d 303, rearg denied 40 N.Y.2d 918; Comcast Sound Communications v Hoeltke, 174 A.D.2d 1023; Buffalo Imprints v Scinta, 144 A.D.2d 1025; Newco Waste Sys. v Swartzenberg, 125 A.D.2d 1004). A non-competition covenant should not be enforced by a preliminary injunction where, as in this case, there is a sharp dispute concerning the underlying facts (see, Newco Waste Sys. v Swartzenberg, supra, at 1005; Cool Insuring Agency v Rogers, 125 A.D.2d 758, 759, mot to dismiss appeal granted 69 N.Y.2d 1037; Family Affair Haircutters v Detling, 110 A.D.2d 745, 747; Union Kol-Flo Corp. v Basil, 64 A.D.2d 861, 862; see also, City of Buffalo v Mangan, 49 A.D.2d 697). Plaintiff's allegations that defendant Troia, a file clerk, possessed confidential information were conclusory and speculative and were controverted by the specific and factually documented affidavits submitted by defendants. Accordingly, the preliminary injunction is vacated.
Furthermore, we observe that Supreme Court erred in failing to direct that plaintiff give an undertaking as a requirement to the granting of the preliminary injunction (see, CPLR 6312 [b]; Sutton, DeLeeuw, Clark Darcy v Beck, 155 A.D.2d 962, 963; Walter Karl, Inc. v Wood, 137 A.D.2d 22, 29; Wasus v Young Sun Oh, 86 A.D.2d 753).