Frank v Wesco Distrib., Inc.

Frank v Wesco Distrib., Inc. 2009 NY Slip Op 09548 [68 AD3d 641] December 22, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 10, 2010

Robert Frank et al., Respondents,
v
Wesco Distribution, Inc., Appellant.

—[*1] Milbank, Tweed, Hadley & McCloy LLP, New York (Thomas A. Arena of counsel), for appellant.

Kramer Levin Naftalis & Frankel LLP, New York (Robert N. Holtzman of counsel), for respondents.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered August 10, 2009, which granted plaintiffs' motion for a preliminary injunction barring enforcement of restrictive covenants in plaintiffs' employment agreements with defendant, unanimously affirmed, with costs.

Although plaintiffs were both the sons-in-law of the seller of Liberty, the electrical supply and distribution company which sold its assets and goodwill to defendant Wesco, plaintiffs owned no shares or interest in Liberty, and therefore an incidental covenant not to compete was not applicable to plaintiffs (see generally Purchasing Assoc. v Weitz, 13 NY2d 267, 271 [1963]). Moreover, plaintiffs demonstrated that the noncompetition clauses in their employment agreements with Wesco were not likely to be enforceable because they imposed restrictions greater than those required for the protection of Wesco's limited interest (see BDO Seidman v Hirshberg, 93 NY2d 382 [1999]). Furthermore, enforcement was likely unnecessary to prevent the disclosure or use of trade secrets or confidential customer information (see Reed, Roberts Assoc. v Strauman, 40 NY2d 303, 307-308 [1976]). In light of plaintiffs' showing that they would continue to be prohibited from working in New York City's electrical supply and distribution industry should the noncompetition clauses be enforced, the motion court properly granted plaintiffs' motion for a preliminary injunction. Concur—Sweeny, J.P., Catterson, Renwick, Freedman and Abdus-Salaam, JJ.