[967 N.Y.S.2d 824] Morrison & Foerster LLP, for plaintiff.
Littler Mendelson, P.C., for defendants.
SHIRLEY WERNER KORNREICH, J.
Plaintiff OTG Management, LLC (OTG) moves by order to show cause for a preliminary injunction, pursuant to CPLR 6301 & 6311, against defendants Aris Konstantinidis and SSP America, Inc. (SSP). Plaintiff's motion is granted in part and denied in part for the reasons that follow.
Factual Background & Procedural History
OTG is a company that provides food and beverage services at airports, including JFK and LaGuardia airports in New York. In July 2011, Konstantinidis was hired by OTG to be an Operations Manager at LaGuardia. On July 8, 2011, Konstantinidis
signed an Agreement Regarding Post-Employment Competition (the Agreement) because, as paragraph E of the Recitals states, he was " required to sign this Agreement as a condition of being employed." The Agreement prohibits Konstantinidis from, inter alia, (1) being employed by a competitor at any airport in the United States for one year after the end of his employment; (2) soliciting any OTG employee or customer for two years after the end of his employment; and (3) disclosing OTG's proprietary information. The Agreement requires all disputes to be mediated, except for applications for injunctive relief, such as the instant motion.
In December 2012, OTG transferred Konstantinidis to JFK, where he became the Terminal Director of JFK Terminal 5. On April 18, 2013, Konstantinidis resigned from OTG. The following week, Konstantinidis began working for SSP, a competitor of OTG that operates at JFK Terminal 4.
On April 30, 2013, OTG commenced this action and asserted two causes of actions in the Complaint: (1) breach of contract against Konstantinidis for violating the non-compete, non-solicitation, and non-disclosure clauses in the Agreement; and (2) tortious interference with contractual relations against SSP for inducing Konstantinidis to breach the Agreement. That same day, OTG filed the instant motion and appeared in court seeking a temporary restraining order (TRO) prohibiting Konstantinidis from working at SSP and from recruiting current and former OTG employees to work for SSP. The court only issued a TRO as to the latter relief and allowed Konstantinidis to continue working at SSP pending a decision on the instant motion.
" A preliminary injunction substantially limits a defendant's rights and is thus an extraordinary provisional remedy requiring a special showing. Accordingly, a preliminary injunction will only be granted when the party seeking such relief demonstrates [967 N.Y.S.2d 825] a likelihood of ultimate success on the merits, irreparable injury if the preliminary injunction is withheld, and a balance of equities tipping in favor of the moving party." 1234 Broadway LLC v. West Side SRO Law Project, 86 A.D.3d 18, 23, 924 N.Y.S.2d 35 (1st Dept. 2011) (citation omitted), citing Doe v. Axelrod, 73 N.Y.2d 748, 536 N.Y.S.2d 44, 532 N.E.2d 1272 (1988).
As a threshold matter, the court must assess whether the non-compete and non-recruitment clauses in the Agreement are ...