First American Title Insurance v. Benchmark Title Agency LLC

48 A.D.3d 327, 851 N.Y.S.2d 523

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 21, 2008
• Status: Published

Opinion

Order, Supreme Court, New York County (Helen E. Freedman, J.), entered January 8, 2007, which granted defendants’ motion for partial summary judgment, dismissing the first, second and fourth causes of action, unanimously affirmed, with costs.

The restrictive covenants not to compete or solicit, set forth in the contract of sale, had expired. Furthermore, the expressly negotiated covenant not to compete superseded the normally implied common-law covenant, particularly where, as here, the customers are generally identifiable, and enjoining solicitation of former clients after the negotiated time period would be tantamount to preventing defendants from acting as a title insurer in Westchester County (see MGM Ct. Reporting Serv. v Greenberg, 74 NY2d 691 [1989]; Titus & Donnelly v Poto, 205 AD2d 475 [1994]).

Defendants met their burden of demonstrating entitlement to summary judgment on the issue of claimed confidential documents and related violation of fiduciary duty, and plaintiff did not meet its burden of demonstrating the existence of issues of fact to warrant a trial (see Zuckerman v City of New York, 49 NY2d 557 [1980]).

We have considered plaintiffs remaining arguments and find them without merit. Concur—Mazzarelli, J.P., Williams, Sweeny, Catterson and Moskowitz, JJ.