Opinion
November 14, 1991
Appeal from the Supreme Court, New York County (Francis N. Pecora, J.).
Plaintiff, a former senior vice president of Names Unlimited, a division of defendant Computer Directions, was employed pursuant to a written agreement which provided that plaintiff would not solicit or offer services to any of the existing accounts of customers he had serviced within the six month period preceding termination, for a period of one year following his termination. Plaintiff eventually left Names Unlimited to form his own company; counterclaim defendant Advantage. It is alleged that plaintiff has violated the restrictive covenant of his employment agreement by servicing defendant Computer Directions' former customers through Advantage.
The court committed no abuse of discretion in denying defendant a preliminary injunction against plaintiff and counterclaim defendant Advantage. Assuming that defendant established the right to enforcement of the restrictive covenant sufficient to defeat a motion for summary judgment (Mallory Factor v Schwartz, 146 A.D.2d 465), there still remain issues of fact as to whether plaintiff has engaged in such solicitations, thus rendering unclear defendant's likelihood of ultimate success on the merits. (Grant Co. v. Srogi, 52 N.Y.2d 496). In any event, even if defendant were to prevail on the merits, we believe it has an adequate remedy at law so as to render injunctive relief unnecessary. (Supra.) We have considered defendant's remaining arguments and conclude that plaintiff's claim of breach of the employment contract for benefits not paid is best determined at a hearing assessing damages and that the parties be permitted to chart their own course with respect to discovery.
Concur — Carro, J.P., Wallach, Ross, Smith and Rubin, JJ.