Casual Water E., LLC v Casual Water Ltd.
2012 NY Slip Op 31571(U)
June 11, 2012
Supreme Court, Suffolk County
Docket Number: 14037/12
Judge: Thomas F. Whelan
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SHORT FORM ORDER
SUPREME COURT-STATE OF NEW YORK
IAS. COMMERCIAL PART 45 - SUFFOLK COUNTY
THOMAS F. WHELAN
Justice of the Supreme Court
CASUAL WATER EAST, LLC,
MOTION DATE 5/18/12
Mot. Seq. # 001 - MG
PHILLIPS LYTELL LLP
Attys. For Plaintiff
437 Madison Ave.
New York, NY 10022
-againstCASUAL WATER LTD., GREGORYP.
KIRWAN and MICHAEL HARTMAN,
AUSTIN M. MANGHAN, !II, ESQ.
Atty. For Defendants
21 West Second St.
Riverhead, NY 11901
Upon the following papers numbered I to 10
read on this motion
for preliminarv injunctive relief
; Notice of Motion/Order to Show Cause and supporring papers~;
of Cross Motion and supporting papers
; AnswcringAffidavits and supporting papers
Affidavits and supporting papers
; Other 6 (memorandum) 7-9 (defendants' memorandum): 10 (memorandum) ;
(alld llftCI heal illg C,"Jl:lJIjelil' juppellt lll.d oppcH"d to tllc 1l11"11iol~ is,
ORDERED that this motion (#001) by the plaintiff for preliminary injunctive relief restraining the
defendants from competing with the plaintiffs pool servicing business in the areas identified by zip codes
in the moving papers and from aiding and abetting the acquisition of new accounts by any other pool
servicing companies who conduct business in the areas identified by said zip codes is considered under
CPLR 63] I and is granted subject to the conditions imposed below.
In November of 2007, the plaintiff purchased from defendant, Casual Water, LTD, [hereinafter
"L TD"J the pool service and maintenance portions of the LTD defendant's pool construction, service and
maintenance business. The purchase encompassed 143 existing accounts of Acquired Subscribers and future
Subscribers located in certain geographical areas defined by zip code. Also purchased by the plaintiff was
the good will attributable to the pool servicing and maintenance business established by the LTD defendant
and certain inventory and equipment. The sale was memorialized in a written agreement which was
executed by, among others, the plaintiff, two of its principals, the LTD defendant and two of its principals,
both of whom have been joined herein as party defendants.
The terms of the purchase agreement obligated the plaintiff, as purchaser, to use its best efforts in
securing customer satisfaction by performing its contraclual obligations to service and maintain pools and
~pas in accordance with the highest standards of professional behavior and ethics so as to protect and
enhance the Casual Water name and logo, but only with respect to the 143 Acquired Subscribers whose
accounts and contracts were subject to transfer to the plaintiff at the closing ofthe purchase agreement (see
~ 7 of the purchase "Agreement"; see a/so ~ 1(a) of the purchase of "Agreement" attached as exhibit 1 to
Causal Water EasL LLC v Casual Water LTD
Index No. 1403712012
the complaint). In addition, the plaintiff, as purchaser, agreed to support all warranties related to sellers'
installed pools. The terms or~ 9 also obligated the plaintiff, as purchaser, -'to refer all construction related
business in the aforementioned zip codes to the seller".
In '19 or the purchase agreement, the LTD defendant agreed "not to at any time to solicit or service