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GFI Securities, LLC v. Tradition Asiel Securities

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 28, 2009

GFI SECURITIES, LLC, PETITIONER-APPELLANT,
v.
TRADITION ASIEL SECURITIES, INC., ET AL., RESPONDENTS-RESPONDENTS. [AND OTHER ACTIONS]
MICHAEL BABCOCK, PETITIONER-RESPONDENT,
v.
GFI SECURITIES, ET AL., RESPONDENTS-APPELLANTS.
DONALD P. FEWER, PLAINTIFF-RESPONDENT,
v.
GFI GROUP, ET AL., DEFENDANTS-APPELLANTS.

Orders, Supreme Court, New York County (Richard B. Lowe III, J.), entered July 29, 2008, which denied GFI Securities' application for a preliminary injunction, unanimously affirmed, with one bill of costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Saxe, J.P., Friedman, Moskowitz, Freedman, Richter, JJ.

Nos. 601183/08, 105584/08, 601187/08, 105575/08, 105466/08 & 601099/08

In these five arbitrations and an action to determine whether an inter-dealer firm raided another firm's brokers and whether the brokers violated the restrictive covenants in their employment agreements, GFI failed to show irreparable harm in support of its motion for a preliminary injunction pursuant to CPLR 7502(c) (see Orasure Tech., Inc. v Prestige Brands Holdings, Inc., 42 AD3d 348 [2007]; National Educ. Prod., Inc. v Educational Reading Aids Corp., 34 AD2d 769 [1970]), since it failed to submit evidence showing that its defecting brokers were irreplaceable or that its losses, other than the speculative claim of lost good will, were not compensable by money damages (see e.g. Famo, Inc. v Green 521 Fifth Ave. LLC, 51 AD3d 578 [2008]).

Although, as admitted in the reply of a GFI executive for purposes of the relief sought (see Ficus Invs., Inc. v Private Capital Mgt, LLC, _AD3d_, 872 NYS2d 93, 100 [2009]), most of the restrictive covenants at issue have expired, rendering the appeal with respect to their enforcement academic (see Mitel Telecomm. Sys., Inc. v Napolitano, 226 AD2d 165 [1996]; Benco Intl. Importing Co. v Krooks, 53 AD2d 536 [1976]), dismissal is not warranted in light of the unexpired restrictive covenant of respondent Wallack and GFI's breach of contract, tortious interference and other claims.

We have considered appellants' other contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20090428

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