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Rosetta Marketing Group, LLC v. Michaelson

Supreme Court of New York, First Department

June 18, 2013

Rosetta Marketing Group, LLC, et al., Plaintiffs-Appellants,
v.
Steven Michaelson, et al., Defendants-Respondents.

Jackson Lewis LLP, New York (Clifford R. Atlas and Peter R. Bulmer of the bar of the State of Illinois, admitted pro hac vice, of counsel), for appellants.

Kornstein Veisz Wexler & Pollard, LLP, New York (Daniel J. Kornstein of counsel), for respondents.

Andrias, J.P., Friedman, Moskowitz, DeGrasse, Feinman, JJ.

Order, Supreme Court, New York County (Melvin L. Schweitzer, J.), entered December 19, 2012, which, in this breach of contract action, to the extent appealed from, denied plaintiffs' motion for a preliminary injunction, unanimously affirmed, with costs.

While the parties dispute the factual assertions surrounding the negotiation and execution of the separation agreements, which contain a one-year noncompete term, as well as whether those agreements concern and supersede the parties' earlier executed purchase agreement, which contains the disputed five-year term, the motion court correctly found that, overall, the comparative harm to the employee defendants in allowing enforcement of a five-year noncompete term is significantly greater than the harm to the employer plaintiffs. Further, plaintiffs failed to establish, a likelihood of success on the merits (see Gilliland v Acquafredda Enters., LLC, 92 A.D.3d 19, 24-25 [1st Dept 2011]). Nor have plaintiffs shown that they would be irreparably harmed absent a preliminary injunction, as any harm could be compensated by money damages (see GFI Sec., LLC v Tradition Asiel Sec., Inc., 61 A.D.3d 586, 586 [1st Dept 2009]).

We have considered plaintiffs' remaining arguments and find them unavailing.


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