broad and thereby unenforceable. A noncompetition agreement is enforceable only if it is (1) reasonable in duration and geographical area, (2) not burdensome to the employee, (3) not harmful to the general public, and (4) necessary for the employer's protection. See American Institute of Chemical Engineering v. Reber-Friel Co., 682 F.2d 382, 387 (2d Cir. 1982); Reed, Roberts Assocs. Inc. v. Strauman, 40 N.Y.2d 303, 307, 386 N.Y.S.2d 677, 680, 353 N.E.2d 590 (1976); Mallory Factor, Inc. v. Schwartz, 146 A.D.2d 465, 467, 536 N.Y.S.2d 752, 753 (1st Dep't 1989).
Defendants' presentations in support of summary judgment, however, fall short of actually demonstrating that enforcement of the Agreement imposes unreasonable time limitations or any harm to the general public, or that it is otherwise so unreasonable as to be unenforceable. Rather, in a somewhat conclusory manner, defendants contend that the Agreement is "unreasonably burdensome" to Suwyn and "harmful to the general public." While defendants do assert that "Suwyn would suffer the extreme burden of being effectively unemployable for a period of 18 months," Suwyn himself has stated that his skills are those of an executive manager, applicable to any business in a wide range of industries in which he is free to seek employment. Suwyn Dep. at 417-18.
Accordingly, drawing all factual inferences in favor of IP, this Court cannot conclude on the basis of the evidence adduced thus far that the Agreement is so unreasonably burdensome as to warrant a finding that it is unenforceable. Indeed, each of the factors that must be analyzed involve triable issues of fact centered on reasonability that preclude the grant of summary judgment. See Tender Loving Care v. Franzese, 131 A.D.2d 747, 748, 517 N.Y.S.2d 50, 51 (2d Dep't 1987).
As defendants correctly point out, even if this Court were to determine that the Agreement is reasonable, the restrictive covenant would only be enforceable to "the extent necessary to prevent the disclosure or use of trade secrets or confidential customer information" or "where an employee's services are unique or extraordinary." Reed, Roberts Assocs., 40 N.Y.2d at 308, 386 N.Y.S.2d at 680. Here, IP alleges that Suwyn was privy to the following "highly confidential" information: (1) IP's three to five year strategic plans; (2) actual cost information concerning IP's plans; (3) proposed plant construction and/or closings; (4) sensitive research with respect to IP's business; (5) genetics information; and (6) various acquisition targets. These allegations further create an issue of fact which cannot be summarily resolved. See Tender Loving Care, 131 A.D.2d at 748, 517 N.Y.2d at 51.
Other contentions advanced in support of, or in opposition to, summary judgment similarly present factual questions of contract interpretation. Summary judgment, as here, on a question of contract construction, is appropriate only where the agreement's language is unambiguous and conveys a definite meaning. Sayers v. Rochester Telephone Corp. Supplemental Management Pension Plan, 7 F.3d 1091, 1094 (2d Cir. 1993); Seiden Assocs., Inc. v. ANC Holdings, Inc., 959 F.2d 425, 428 (2d Cir. 1992). Where, however, the contractual language used is susceptible to differing interpretations, each of which may be said to be "reasonable," and where there may be relevant extrinsic evidence of the parties' actual intent, the meaning of the words becomes an issue of fact and summary judgment is inappropriate. Sayers, 7 F.3d at 1094; Seiden Assocs., 959 F.2d at 428.
Here, for example, before considering the language of the Agreement itself, this Court must address the threshold question of whether the side note reflects the parties' intent to modify the Agreement or was merely a summary of Suwyn's discussions about the Agreement with John Georges. If, on one hand, the note is deemed a modification, then it could be viewed as a counteroffer that, when accepted, became part of the Agreement. If, on the other hand, the side note was designed simply to record the discussions between Georges and Suwyn, then the note would be parole evidence, inadmissible to add to or vary the terms of the Agreement. Mizuna, Ltd. v. Crossland Federal Savings Bank, 90 F.3d 650, 659 (2d Cir. 1996); Readco Inc. v. Marine Midland Bank, 81 F.3d 295, 299 (2d Cir. 1996); W.W.W. Assocs., Inc., v. Giancontieri, 77 N.Y.2d 157, 163, 565 N.Y.S.2d 440, 443, 566 N.E.2d 639 (1990). Because conclusions concerning, inter alia, the significance of the side note intended by IP and Suwyn require further factual development at trial, summary judgment is not appropriate.
For the reasons set forth above, defendants' motion for summary judgment is denied. See Fed. R. Civ. P. 56(a).
BARRINGTON D. PARKER, JR.
Dated: White Plains, New York
January 3, 1997