Kliger v Fairmont Ins. Brokers LLC 2026 NY Slip Op 30863(U) March 4, 2026 Supreme Court, Kings County Docket Number: Index No. 505356/2023 Judge: Reginald A. Boddie Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.
file:///LRB-ALB-FS1/Vol1/ecourts/Process/covers/NYSUP.5053562023.KINGS.001.LBLX000_TO.html[03/17/2026 3:45:49 PM] !FILED: KINGS COUNTY CLERK 03/04/2026 11: 19 AM! INDEX NO. 505356/2023 NYSCEF DOC. NO. 821 RECEIVED NYSCEF: 03/04/2026
At an IAS Commercial Part 12 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, located at 360 Adams Street, Borough of Brooklyn, City and State of New York on the 4th day of March 2026.
PRES ENT: Honorable Reginald A. Boddie Justice, Supreme Court ----------------------------------------------------------------------x
MORDECHAI KLIGER,
Plaintiff, Index No. 505356/2023 -against-
FAIRMONT rNSURANCE BROKERS LLC, formerly known as FAIRMONT INSURANCE BROKERS, LTD., Cal. No. 8-12 MS 24-28
Defendant. -----------------------------------------------------------------------x
FAIRMONT rNSURANCE BROKERS LLC, formerly known as FAIRMONT INSURANCE BROKERS, LTD.,
Third-party Plaintiff,
-against- Decision and Order
BA YROCK INSURANCE AGENCY, LLC; THE FIDELLA AGENCY LLC d/b/a THE FIDELLA INSURANCE AGENCY, STERUNG PROPERTY AND CASUALTY INC., CREATIVE INSURANCE GROUP, LLC, and DA YID DREBIN,
Third-Party Defendants. ------------------------------------------------------------------------x The following e-filed papers read herein: NYSCEF Doc Nos. MS 24/28 617-647; 719-721; 732-740 774-775 MS25 606-616; 741-743; 777 MS26 648-677; 722-731; 778-788 MS 27 678-716; 744-773; 776
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The separate motions seeking summary judgment dismissing the third-party complaint and
awarding sanctions against defendant/third-party plaintiff, Fairmont Insurance Brokers LLC
("Fairmont"), by third-party defendant/counterclaimant Sterling Property and Casualty Inc.
("Sterling'') (MS 25) and third-party defendant Bayrock Insurance Agency, LLC ("Bayrock") (MS
24 and 28); the motion by plaintiff, Mordechai Kliger ("Kliger'"), and third-party defendants,
Creative Insurance Group, LLC (''Creative") and David Drebin ("'Drebin'' and collectively with
Kliger and Creative, "Kliger Parties"), seeking summary judgment as to liability against Fairmont
on the causes of action asserted in the second amended complaint ("SAC") and dismissing
Fairmont's third-party complaint against Creative and Drebin (MS 26); and Fairmont's motion
seeking, among other relief, summary judgment against Kliger on the remaining claims in the SAC
and judgment in its favor on the issue ofliability for breach of the parties· agreement (MS 27), are
decided as follows:
Background
Fairmont is an insurance brokerage firm in the business of procuring insurance policies for
its clients. Fairmont employs a network of "Associate Producers" who use Fairmont's resources
and systems to help obtain and maintain clients for Fairmont. In November 2004, Kliger began
working with Fairmont as an Associate Producer. On or about February 18, 2005, Kliger and
Fairmont entered into an agreement entitled the Associate Producer Agreement ("APA").
According to the SAC, under the AP A, Kliger, acting as an independent contractor, agreed,
inter alia, to submit all original and renewal insurance business solicited or otherwise secured by
him during the term of the APA to Fairmont for placement with insurers. In return. Fairmont
agreed, inter alia, to use its best efforts, to place policies of insurance as and when requested by
Kliger and to provide Kliger with "Supporting Services.'' Fairmont agreed to compensate Kliger
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for each insurance policy placed by Kliger through Fairmont by paying Kliger "forty ( 40) percent
of the 'gross commission"' on each policy, while also providing that ''[t]he parties may agree to a
different percentage rate for special types or classes of business and coverage" (APA, § I 7). Kliger
represents that, in accordance with the final sentence of§ 17 of the APA, more than ten years ago,
the parties agreed that Fairmont would compensate Kliger at a different percentage rate - 45% of
gross commission - for all classes of insurance placed by Fairmont at Kliger's request, and
Fairmont has been compensating Kliger at that rate ever since. It is undisputed that, under § 24 of
the AP A, there is a handwritten notation (the '·Handwritten Portion"') that provides, "If this
agreement is terminated without cause, Associate Producer can still maintain book of business and
receive 40% commission from this book."
In early January 2023, Kliger was advised that Fairmont intended to sell substantially all
of its assets to Foundation Risk Partners, Corp. The sale purportedly required Kliger to sign a
series of draft agreements, which he declined to do. On or around February 14, 2023, Fairmont
provided Kliger notice that it was terminating the APA without cause effective March 23, 2023.
On February 17, 2023, Kliger commenced this action arguing that Fairmont breached the
APA by prematurely curtailing Kliger's access to Fairmont's Agency Management System
("AMS"), which electronically stores insurance client information. On February 21, 2023, Kliger
moved for a preliminary injunction with temporary restraints seeking to enjoin Fairmont from
limiting Kliger's access to AMS and prohibiting Fairmont from "soliciting Plaintiff's insurance
clients or otherwise interfering with Plaintiffs contractual right to maintain his book of insurance
business and his right to be compensated therefor. .. .'' The court signed the order to show cause
on February 24, 2023, with a return date of April 6, 2023. In the interim, Fairmont was directed
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to provide Kliger with complete access to information relating to his insurance clients stored
electronically on AMS.
The parties thereafter entered into a stipulation dated April I 0, 2023 (..Stipulation"),
resulting in the withdrawal of Kliger's order to show cause. Under the Stipulation, each party
made certain concessions. Kliger agreed to "not interfere in any way with Defendants' business,
other than in connection with the servicing of the Pre-Termination Business;'" both sides agreed
not to disparage each other or their principals, agents and employees; and with respect to
"insurance business solicited or otherwise secured by Plaintiff and placed by Defendant that
existed at the time of the termination of the Associate Producer Agreement between the Parties
(the "Pre-Termination Business")," Fairmont agreed, among other things, to provide Kliger with
access to AMS and "good faith assistance'' so that Kliger could maintain and service his Pre-
Termination Business.
On May 31, 2023, Fairmont moved by order to show cause seeking to enjoin Kliger from,
among other things, communicating with Fairmont's clients, or any insurance providers, brokers,
carriers, and/or wholesalers relating to Fairmont's clients and accessing Fairmont's AMS.
According to Fairmont, the motion was necessitated due to Kliger's interference with Fairmont's
business by using its ·'confidential information" to convince Fairmont's clients to switch brokers
or "cut out the middleman.'' By decision dated July 14, 2023, Fairmont's motion for injunctive
relief was denied. The allegations undergirding Fairmont"s motion are the substance of Fairmont" s
counterclaims against Kliger, which allege that Kliger breached the APA and Stipulation by,
among other things, disclosing confidential information, disparaging Fairmont. and inducing
Fairmont's clients to switch to a different insurance broker.
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On or around August 16, 2024, Fairmont commenced an action in New Jersey Superior
Court ("'New Jersey Action") against Creative, Kliger's solely owned company, and Drebin,
Creative's employee. The New Jersey Action was also filed against Bayrock, Sterling, and the
Fidelia Insurance Agency d/b/a The Fidella Insurance Agency ("Fidelia"). Upon a motion by
Kliger seeking an injunction enjoining Fairmont from litigating the New Jersey Action pending
the resolution of the instant action, by decision dated November 8, 2024, the court granted Kliger's
motion and enjoined Fairmont from further litigating the New Jersey Action on the ground that
the New Jersey Action and the instant action, which was commenced 18 months earlier, concerned
the "same nucleus of facts."
Thereafter, on January 14, 2025, Fairmont filed its third-party complaint against Bayrock,
Fidella, Sterling, Creative and Drebin. Fairmont interposed six claims against the third-party
defendants: (i) tortious interference with contract; (ii) tortious interference with economic
advantage; (iii) unjust enrichment; (iv) violation of the Defend Trade Secrets Act ("DTSA") under
18 U.S.C. § 1836; (v) injunctive and equitable relief; and (vi) common law misappropriation. As
against Creative and Drebin, Fairmont asserted an additional claim for alter ego liability, alleging
that Creative is a mere corporate instrumentality used for Kliger's benefit. The crux of Fairmont's
claim against Bayrock, Sterling and Fidelia centers on their alleged assistance to Kliger in inducing
or supporting Kliger's breach of his contractual obligations to Fairmont by using Fairmont's
confidential information and assisting Kliger in soliciting Fairmont's clients.
Pursuant to court order, the note of issue was filed on January 31, 2025. Given the
proximity of the note of issue due date to the commencement of the third-party action, the court
permitted limited third-party discovery post-note of issue. Upon motions to dismiss made by third-
party defendants, Bayrock, Sterling. and Fidelia, by decision dated May 9, 2025, the court
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dismissed the majority of Fairmont's third-party claims, leaving only the claims for trade secret
misappropriation, violation of DTSA, and permanent injunctive relief.
Upon conclusion of discovery for both the main action and the third-party action, nearly
all parties filed motions seeking summary judgment. Both Bayrock and Sterling seek summary
judgment dismissing the remainder of Fairmont's third-party claims and awarding them judgment
on their counterclaim for attorney's fees and costs under the DST A. Although Bayrock and
Sterling filed separate motions for summary judgment, for purposes of judicial efficiency, and
given that their legal arguments are substantially similar, the court addresses both motions as one.
MS 24/25/28: Bavrock and Sterling's Motions for Summary Judgment
Regarding Fairmont's common law claim for misappropriation of trade secrets, Bayrock
and Sterling argue that (1) Fairmont does not have protectible trade secrets; (2) even if Fairmont
possessed trade secrets, Bayrock and Sterling did not obtain them by improper means; and (3)
Fairmont cannot demonstrate any damages due to any alleged misappropriation.
Referencing the third-party complaint, Bayrock and Sterling state that Fairmont is alleging
that its "client contact information, information about the client" s properties and business relevant
to quoting insurance, renewal dates and specific policy needs'' are its trade secrets. Further, that
Fairmont's witness testified that the entire way Fairmont conducts business and any "important
piece of information" in its business constitutes trade secrets. According to Bayrock and Sterling,
New York law fails to protect the foregoing as trade secrets because (1) the way it conducts
business lacks the specificity required; (2) information that is readily available through public
sources is not subject to trade secret protection; (3) information that is widely accessible within
Fairmont to many ofits employees and also shared to third parties is not a trade secret; (4) Fairmont
did not guard the secrecy of its alleged trade secrets by encrypting its email or even labeling the
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information as confidential or proprietary; and (5) client information cannot be Fairmont's trade
secret since such information belongs to the client and not Fairmont.
Even presuming Fairmont had protectible trade secrets, Bayrock and Sterling argue
Fairmont's trade secret claim would still fail for the independent reason that Fairmont does not
have any evidence that its purported trade secrets were improperly obtained or used by Bayrock
or Sterling. In this regard. Bayrock submits the record in this matter fails to contain a single
instance of Bayrock using Fairmont's information, and that Fairmont even acknowledged it had
not seen a single email where Bayrock was using one of Fairmont's trade secrets. Bayrock further
submits that its witness testified, at its deposition, that there is a perfectly innocent explanation
why Kliger was sending Bayrock information about Bayrock's client's prior policies with
Fairmont and that is-those emails contained information that came from the client and the client
requested Bayrock create a master insurance policy that would cover all of its prior insurance
policies.
Similarly, Sterling submits that its witness testified that most, if not all, of former Fairmont
clients that did business with Sterling affirmatively reached out to Sterling to do business or change
brokerages, with Kliger sometimes forwarding information at the request of the client. Upon a
"comprehensive" search of its documents in response to discovery requests from Fairmont,
Sterling asserts that only two documents were yielded that contained any information readily
identifiable as coming from Fairmont, and that both pertained to a client called Yeshiva Orchos
Chaim and consisted of substantially the same information regarding policy renewal. Sterling
represents that both communications from Fairmont came to Sterling because they were forwarded
by the client. Based on the foregoing, Bayrock and Sterling argue there is no evidence that they
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misused any of the information that Fairmont asserts is confidential or proprietary. and as such,
that the court should dismiss Fairmont's misappropriation of trade secrets claim.
In addition to the foregoing, Bayrock and Sterling contend Fairmont's failure to show any
damages from any alleged unlawful conduct bars recovery on its third-party claims and constitutes
another basis for summary judgment. In this regard, Bayrock claims Fairmont was not able to
testify about any clients who left to go to Bayrock, or even that it lost any revenue at all.
As for Fairmont's cause of action for permanent injunction, where Fairmont's substantive
claims are dismissed, Bayrock and Sterling contend there is no basis for injunctive relief. Thus,
because Fairmont's misappropriation claim is unsustainable, they submit Fairmont's claim for
injunctive relief must also be dismissed.
Lastly, Bayrock and Sterling argue that the court should grant them summary judgment on
their counterclaim for attorneys' fees under 18 U.S.C. § 1836(b)(3)(0). They point out that under
the DTSA, where a claim of misappropriation of trade secrets is made in bad faith, a court may
award reasonable attorneys' fees to the prevailing party. Based on the lack of any evidentiary
support for Fairmont's contentions that either Bayrock or Sterling misappropriated any of
Fairmont's trade secrets, or that those trade secrets even existed, movants submit Fairmont's claim
is wholly specious and lacking merit.
[n opposition to Bayrock's and Sterling's motions, Fairmont contends it has identified
specific trade secrets that were misappropriated, including: (i) client contact information that is
not readily available to the public and was developed through Fairmont's substantial investment
of time and resources; (ii) detailed information about clients' properties and businesses relevant to
quoting insurance, which Fairmont compiled through its expertise and client relationships: (iii)
renewal dates and specific policy needs tailored to each client's unique circumstances; and (iv)
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comprehensive client files containing proprietary information about insurance coverage, risk
assessments, and pricing strategies. Although basic information may be publicly available,
Fairmont asserts that its "proprietary compilation. organization, and analysis of this information is
not" and that courts have consistently recognized that compilations of data can qualify as trade
secrets even if some components are publicly available. Specifically, Fairmont contends that its
AMS is entitled to trade secret protection as Kliger has made abundantly clear throughout this
action that he could not properly maintain his clients without accessing Fairmont's AMS and the
confidential information contained therein.
Contrary to Bayrock and Sterling's assertions, Fairmont argues that it took reasonable
measures to protect its trade secrets, including, but not limited to: (i) limiting access to client
information within the company; (ii) requiring employees, including Kliger, to sign confidentiality
agreements as part of their employment contracts; (iii) maintaining client information in a secure
AMS with controlled access; and (iv) implementing company policies prohibiting the unauthorized
disclosure of client information. Fairmont contends Sterling's arguments about Fairmont's failure
to encrypt emails or mark documents as confidential are misleading since the standard is
reasonableness, not perfection. In any event, Fairmont points out that it protected its trade secrets,
as evidenced by the fact that Kliger filed this lawsuit and moved to obtain access to AMS.
Regarding Bayrock and Sterling's explanation that they received information directly from
clients rather than through misappropriation, Fairmont contends the foregoing is belied by the
documentary evidence. In support, Fairmont proffers an email from Kliger to Naftali Rothenberg,
co-owner of Sterling, containing an attachment that had a .. loss run" that was generated on March
22, 2023, when Kliger was still working for Fairmont. Fairmont also references an email from
Kliger to Dov Schwadel ("Schwadel''), owner of Bayrock, containing a 2022 quote to Fairmont on
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client Springwood Garden, an email from Kliger to Schwadel containing a 2022 insurance binder
from Fairmont on client WG FL Portfolio, and Kliger forwarding Fairmont's application for a
client to Schwadel as well as loss runs obtained by Fairmont. Fairmont submits Kliger's
unauthorized sharing of AMS information to Bayrock and Sterling raises factual disputes as to
whether Kliger was violating the APA that cannot be resolved on summary judgment.
Additionally, it is Fairmont's position that Bayrock and Sterling's use of information from
Fairmont's AMS sent by Kliger constituted misappropriation since they knowingly obtained
information from an individual under a duty to maintain the secrecy of such information. Further,
that Fairmont need not demonstrate damages since it is not an element of misappropriation. In any
event, Fairmont contends that Sterling never produced documents or records related to premiums
and payments that it received from pre-termination clients that left Fairmont and moved their
business to Sterling since February 2023.
Regarding Bayrock and Sterling's counterclaims, Fairmont argues that such claims are
baseless. Because this action is neither frivolous nor in bad faith, Fairmont contends that their
request for attorneys' fees under DSTA is improper.
In reply, Bayrock and Sterling contend that. under the DTSA, the court may award
reasonable attorney's fees to the prevailing party "if a claim of the misappropriation is made in
bad faith, which may be established by circumstantial evidence.'' In this regard, Bayrock and
Sterling state that bad faith can be inferred since, among other things, Fairmont never asserted
claims against them until the court refused Fairmont discovery related to them, Fairmont is
bringing a trade secrets claim on information that it in no way protects from third parties, and
Fairmont has failed to show any damages stemming from Bayrock and Sterling's actions.
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In addition, Bayrock and Sterling re-emphasize that Fairmont lacks any protectible trade
secret. They contend that, while Fairmont points to its AMS as a trade secret, Fairmont failed to
produce its AMS in discovery and fails to show how its "compilation" is in any way more than an
insurance broker·s collection of names and addresses, which New York law has long held does
not constitute a trade secret. Bayrock and Sterling stress that Fairmont's information is not unique
and can be easily duplicated by anyone who receives one of the monthly emails from third parties
offering to sell customer lists that would contain this information. They also point out that
damages in trade secret actions are measured by the losses incurred by the plaintiff and, here,
Fairmont has not provided any evidence of damages. Based on the foregoing, Bayrock and
Sterling argue that Fairmont's claims should be dismissed as a matter oflaw.
MS 26 and 27: Kliger Defendants' and Fairmont's Motions (or Summary Judgment
Kliger seeks summary judgment on liability on the causes of action asserted in his SAC
against Fairmont and to schedule an inquest. Within the same motion, Creative and Drebin seek
dismissal of Fairmont's third-party claims against them. Fairmont seeks dismissal of the SAC and
an award of partial summary judgment in its favor for breach of contract. Fairmont also seeks an
order of preclusion against Kliger under CPLR 3126 for his alleged failure to provide certain
discovery.
It is undisputed that the APA includes the Handwritten Portion. According to Kliger, the
Handwritten Portion modifies the printed form of the APA, which, at§ 21, provides for a "buyout"
of Kliger's book of business at specified values. Instead of a buyout, Kliger contends the
Handwritten Portion allows Kliger to obtain his regular commissions on his existing book of
business. In support, Kliger relies on the rule of construction stating that where a contract contains
two repugnant provisions, one printed and the other typewritten or handwritten, the written
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provision overrides the printed one and controls the interpretation and construction of the contract.
In addition, Kliger proffers the deposition testimony of Fairmont employee, Andrew Gross, who
states that his understanding of the Handwritten Portion is that Kliger "can still maintain his book
of business and receive commission from his book'' (EBT Andrew Gross, 136: 18-22). Kliger also
explains that it took many months for the APA and Handwritten Portion to be executed because
he had to negotiate for its inclusion and it took months for Fairmont to agree to it.
According to Fairmont. Kliger's interpretation of the Handwritten Portion calls for the
deletion of numerous paragraphs within the AP A and is, therefore, incorrect. Fairmont contends
that ''book of business" cannot mean the clients procured by Kliger during his tenure at Fairmont
because § 16 of the AP A provides explicitly that those accounts belong to Fairmont. Fairmont
states that pre-termination clients procured by Kliger arc referred to as "accounts" or '"clients," not
Kliger's "book of business." Thus, Fairmont asserts that when "book of business" appears for the
first and only time in the Handwritten Portion, it means something else. In this regard, Fainnont
argues that '"book of business" only refers to new post-termination business that Kliger brings to
Fairmont, and that Kliger's insistence that the Handwritten Portion means that Kliger owns the
pre-termination book of business is in direct contradiction to, not only § 16 of the APA, but also
sections 5, 26, and 7. f airmont emphasizes that the Handwritten Portion refers to "book of
business" and not, as Kliger misleadingly states, his book since, under the AP A, it is legally
impossible for Kliger to have ''his" book of business refer to accounts obtained while working for
Fairmont.
Fairmont also points out that one of Kliger's primary claims of breach of contract is an
allegation that Fairmont breached § 13 ("to use best efforts to place insurance policies'") and § 15
("to provide supporting services to assist Kliger with underwriting") of the APA by withholding
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full access to information stored on AMS. Fairmont argues that Kliger cannot sustain his claim
for indefinite AMS access because it does not exist in the APA, is not mentioned in either § 13 or
§ 15 of the APA, AMS access was not a contractual obligation even prior to termination. and that,
post-termination, given that the ''Associate Producer" is the one required to turnover to the
"Agency" all financial and other records, there is no contemplation that Kliger would be entitled
to access Fairmont's records and documents after termination.
In response, Kliger submits that Fairmont is obligated to provide Kliger access to AMS
under the court-ordered Stipulation, which ordered that Fairmont would continue to provide Kliger
with full access to Fairmont's AMS. In addition, Kliger argues that because the Handwritten
Portion provides that Kliger "can still maintain" his book of business, which means servicing the
client, and which can only be achieved by having the client's insurance-related information in
hand, AMS cannot be shut off for Kliger.
Regarding its motion seeking partial summary judgment against Kliger, Fairmont contends
that Kliger breached the APA and the duty ofloyalty 1 by ( 1) by disclosing confidential information
to Creative, Bayrock and Sterling in violation of§ 5; (2) by accepting new or renewal business
1 Under section 7 of the APA entitled ··Duty of Loyalty to Agency," during the tenn of the Agreement and for three years thereafter, the Associate Producer is restricted from (i) soliciting or accepting business from existing clients of Fairmont; (ii) inducing or attempting to induce any holder of an insurance policy placed through Fairmont to cancel or transfer coverage; or (iii) inducing or attempting to induce any other producer, employee, correspondent, agent, or independent contractor, to tenninate his/her/its relationship with Fainnont or to breach an agreement with Fainnont.
Under section 27 of the APA entitled '"Restrictive Covenant," for a period of three years following tennination of the Agreement, the Associate Producer is restricted from: (i) soliciting or accepting any new or renewal business from, any client of Fainnont; (ii) inducing or attempting to induce any policy holder from cancelling or transferring insurance coverage; (iii) opening, acquiring or maintaining an insurance business within Brooklyn, New York; (iv)joining or associating in the insurance business with any fonner associate producers, employees, correspondent, agent or independent contractor; or (v) inducing other associate producers, employees. correspondents, agents or independent contractors to tenninate his/her relationship with Fairmont.
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from Fairmont's clients to his own brokerage, Creative, in violation of§ 27; and (3) by soliciting
Fairmont"s clients to switch to different brokers, including to his own brokerage, Creative.
Fairmont submits that its three-year non-solicit and duty of loyalty provisions under the APA are
enforceable since the timeframe is reasonable especially considering that the subject non-solicit
provision only prevents the employee from soliciting or accepting business from any of Fairmont's
clients but does not prevent the employee from pursuing his career.
Fairmont contends that Kliger' s breach of the APA is established as Kliger admits, in his
deposition testimony, that he has been taking clients since he was terminated, and the record is
replete with examples of Kliger taking Fairmont's pre-termination business to Creative.
Additionally, Fairmont argues that Kliger was sending Fairmont's confidential information to
Fairmont's competitors, like Sterling and Bayrock, as well as to Creative.
In response, Kliger argues that the subject restrictive covenant is unenforceable because
( 1) Fairmont has not alleged any unique activity or proprietary information that might warrant
protection; (2) Fairmont's restrictions span three years from the date of termination, which is two
years longer than any acceptable restrictions, and Fairmont offers no compelling reason to justify
the lengthy restriction; (3) non-competition restrictions imposed against insurance brokers are
contrary to public policy; (4) Fairmont's termination without cause bars enforcement of the
restrictive covenants because enforcement would destroy the mutuality of obligation upon which
such covenants are based; and (5) Fairmont's breaches of the APA. including withholding Kliger's
full commission payments and denying him access to critical client information he was entitled to
pre-and post-Stipulation, excuse Kliger's performance under the restrictive covenants and render
them unenforceable, also due to the concept of mutuality of obligation.
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In addition, Kliger argues that the Handwritten Portion undermines any claim that the
restrictive covenants are enforceable since the handwritten amendment specifically allows Kliger
to collect commission on his pre-existing "book of business," which are clients that have done
business with Fairmont in the past and may still be doing business with Fairmont. Moreover, to
the extent Fairmont has taken the position that, based on the language of the restrictive covenants,
Kliger may not accept former Fairmont clients that come to Creative of their own volition, Kliger
submits such an interpretation would impose an unconstitutional ban on a person's right to choose
the professional of his choice and is therefore unenforceable.
Although the HandwTitten Portion specifies a 40% commission rate, Kliger contends that
in the later years of his employ, he received a commission rate of 45% which was payable so long
as Kliger generated premiums above $10 million. Kliger argues that, based on the documentary
evidence and the testimony of Fairmont representatives, including its CFO, 2 he is entitled to
commissions calculated at the rate of 45% and not 40%. In response, Fairmont contends it paid
Kliger an additional 5% while employed at Fairmont. but that the APA does not support Kliger's
contention that the higher rate must be paid post-termination. Moreover, that the integration clause
in the APA stating that this '·agreement may not be altered or varied except in writing signed by
both parties'' precludes Kliger·s position that the additional 5% must be paid post-termination.
Kliger also seeks summary judgment on his claim for declaratory judgment regarding the
"Lakewood Agreement." On or around December 1, 2005, Kliger and Fairmont entered into the
Lakewood Agreement," which provides for Kliger to receive $1,000 per month going up to $2,000
per month for managing Fairmont's Lakewood, New Jersey office. In addition to the monthly
salary, the relevant paragraph provides that:
2 Kliger references Licht' s testimony in which he states that he knew of no case at Fairmont where a producer of$ l O million in revenues or more did not receive the extra 5%.
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"Kliger will earn the 10% override on any new Producer whom he manages, should he choose to do so. After the expiration of this agreement, if Kliger is no longer the manager, the agency reserves the right to move any future policies written by the salespeople to a new manager. Kliger will continue to receive the override on any existing policies."
According to Kliger, the Lakewood Agreement does not restrict his entitlement to the override to
continued employment. He thus asserts that he is entitled to the override on any existing policy
that continues to generate revenue for Fairmont from the Lakewood office, which Fairmont has
not paid since his termination.
In response, Fairmont submits Kliger was no longer the manager of the Lakewood branch
as of February 2023, and thereafter, all renewal policies were paid directly to the producers with
no further overrides to the new manager. Fairmont contends that Kliger was paid on the existing
policies and, as of March 23, 2023, there remained no existing policies that Kliger was entitled to
receive any override. Fairmont further contends that Kliger is seeking overrides for commission
on renewal policies, as opposed to existing ones, but that the Lakewood Agreement is silent about
an extended payout post-termination for commissions that accrue after termination. In addition,
that Kliger also seeks the monthly $2,000 salary for an indefinite period despite no longer being
manager of the Lakewood branch. Because there is no provision in the APA providing for post-
termination salary or commissions, Fairmont argues Kliger' s claim under the Lakewood
Agreement cannot be sustained. As such, that the court should dismiss Kliger's cause of action
for declaratory judgement based upon the Lakewood Agreement.
Fairmont, in addition to seeking partial summary judgment, seeks an adverse inference
against Kliger based on his alleged failure to produce documents and records related to premiums
and payments that he or Creative received from pre-termination clients that left Fairmont and
moved to Creative since February 2023. Fairmont contends this evidence is crucial, as Fairmont
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and Kliger·s damages cannot be properly calculated without these documents. As such, Fairmont
argues that an adverse inference is warranted that the withheld records would show that Kliger
fully mitigated his damages by diverting Fairmont's revenue to his own entity, or a preclusion
order is warranted against his expert report.
In response, Kliger submits that he has complied with Fairmont's discovery requests,
having produced, as late as January 2025, 12,000 additional documents bringing the total number
of documents to 800,000. Kliger claims that Fairmont failed to raise any issues worthy of a motion
about these latest productions until Kliger complained about Fairmont's failure to produce the
critical documents demanded by Kliger, which were the commission statements that Fairmont
refused to provide. Moreover, Kliger states that he produced both his personal tax returns and that
of Creative's and that bank statements were subpoenaed and produced to Fairmont. Kliger also
points out that the court addressed some of issues regarding the financial documents at a discovery
conference on November 7, 2024, and by motion decision entered on December 20, 2024, and did
not compel Kliger to produce redundant information.
Lastly, Kliger seeks dismissal of the third-party claims against Creative's employee,
Dre bin. Kliger argues that Dre bin was dragged into this lawsuit merely because he is an employee
and for no other reason. Further. that Fairmont has not proffered anything in the record that points
to any participation or culpability on the part of Dre bin.
Discussion
It is well established that summary judgment is granted when "the proponent makes a prima
facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to
demonstrate the absence of any material issues of fact, and the opponent fails to rebut that
showing'· (Brandy B. v Eden Cent. School Dist., 15 NY3d 297, 302 [2010] [quoting Alvarez v
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Prospect Hosp., 68 NY2d 320, 324 [1986]]). Once the proponent has made a prima facie showing,
the burden then shifts to the motion's opponent to present evidentiary facts in admissible form
sufficient to raise a genuine, triable issue of fact (Zuckerman v City of New York, 49 NY2d 557,
562 [1980]). If there is any doubt as to the existence of a triable fact, the motion for summary
judgment must be denied (Morejon v New York City Tr. Aulh., 216 AD3d 134, 136 [2d Dept 2023]
[citations omitted]).
Bavrock and Sterling· Motions for Summary Judgment
The elements of a cause of action to recover damages for misappropriation of trade secrets
are: (I) possession of a trade secret; and (2) use of that trade secret in breach of an agreement,
confidential relationship or duty, or as a result of discovery by improper means (Photonics Indus.
Intl., Inc. v Xiaojie Zhao, 185 AD3d 1064, 1067 [2d Dept 2020] [citation omitted]). A trade secret
includes any compilation of information which provides the company with an opportunity to obtain
an advantage over competitors who do not know or use it (Ashland Mgt. v Janien, 82 NY2d 395,
407 [1993]). Although the names of insurance customers are not a trade secret (Reidman Agency
v Musnicki, 79 AD2d 1094 [4th Dept 1981 ]), customer lists containing information relating to
clients that is not readily kno~n in the trade and that is discoverable only through effort are entitled
to trade secret protection (see Stanley Tu/chin Assoc., Inc. v Vignola, 186 AD2d 183, 185 [2d Dept
1992]; see also Marcone APW, LLC v Servall Co., 85 AD3d 1693, 1695-1696 [4th Dept 2011]).
'·The question of whether or not a customer list is a trade secret is generally a question of fact"
(A.F.A. Tours, Inc. v Whitchurch, 937 F2d 82, 89 [2d Cir 1991 ]).
Here, Bayrock and Sterling fail to establish that Fairmont's compilation of customer
account information, which was accessible to Kliger through Fairmonf s AMS, does not constitute
a trade secret. Throughout this litigation, Kliger has strongly maintained that access to Fairmont's
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AMS was essential to service his clients. Thus, it is clear that the information contained in
Fairmont's AMS is not merely a list of customer names. Moreover, it is undisputed that access to
AMS is password-protected and that Fairmont requires its employees to sign confidentiality
agreements as part of their employment contracts.
Notwithstanding the foregoing, Bayrock and Sterling established the absence of the second
prong. There is no indication in the record that Bayrock and Sterling used Fairmont's AMS
information to their benefit (see Falconwood Corp. v in-Touch Techs., Ltd., 227 AD2d 215, 216,
[1st Dept 1996]). Further, a defendant will not be found to have used wrongful or improper means,
even where the defendant knowingly receives trade secrets from a competitor's former employee
who "voluntarily" appropriated the trade secrets (see Schroeder v Pinterest Inc., 133 AD3d 12, 28
[1st Dept 2015]). Here, the only evidence in the record relates to Kliger voluntarily forwarding
client information to Bayrock and Sterling on a handful of occasions. The foregoing is insufficient
to raise an issue of fact regarding whether Bayrock or Sterling used Fairmont's "trade secrets."
For the same reason, Fairmont's third-party claim regarding violation of the DSTA fails.
The court notes that neither side claims that the standard for misappropriation under the DST A is
easier to meet than under the state's common law. Under the DSTA, misappropriation is defined
as '"( 1) the acquisition of a trade secret by a person who knew or had reason to know that the trade
secret was acquired by improper means; or (2) the disclosure or use of a trade secret without
express or implied consent by a person who acquired it through improper means" (eShares, inc. v
Talton, 727 F. Supp. 3d 463,475 [SONY 2024] [citing 18 USC§ 1839(5)]). '"Improper means'
under the DTSA includes theft, bribery, misrepresentation, breach or inducement of a breach of a
duty to maintain secrecy and espionage through electronic or other means .... " (id.). Here, there is
no evidence in the record that Bayrock and Sterling acquired Fairmont's trade secret by improper
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means or that they used or disclosed any of Fairmont's trade secrets. As such, Bayrock and
Sterling established their entitlement to summary judgment dismissing this claim as well.
Due to dismissal of the misappropriation claims under state and federal law, Fairmont's
remaining third-party claim for a permanent injunction is unsustainable. As such. this claim is
also dismissed. Based on the foregoing, there are no surviving third-party claims against Bayrock
and Sterling.
Turning to Bayrock and Sterling's counterclaims, the DTSA provides, in relevant part, that
a court may "award reasonable attorney's fees to the prevailing party" if "a claim of the
misappropriation [of trade secrets] is made in bad faith" (see 18 USC § 183 6(b )(3 )(D)). The statute
provides that bad faith "may be established by circumstantial evidence" (id.). "Bad faith" under
the DSTA is shown where (1) plaintiffs suit is "objectively specious" and (2) plaintiff exhibited
subjective bad faith in making the claim (see Recoop LLC v Outliers Inc., 2025 U.S. Dist. LEXIS
117190, *48 [SDNY 2025]).
Here, neither Bayrock nor Sterling established its right to fees under the DSTA. Fairmont's
claim is not yet objectively specious as to every element of a misappropriation claim since movants
failed to establish, as a matter of law, that Fairmont lacked any protectible trade secret (see id).
In addition, Bayrock and Sterling fail to establish that Fairmont knew or was reckless in not
knowing that its claim for trade secret misappropriation had no merit (see id. at 49-50). Thus, that
part ofBayrock and Sterling's motions seeking summary judgment on their counterclaim is denied.
Kliger Parties· and Fairmont ·s Aiotions for Summan' Judgment
It is well established that a written agreement that is complete, clear, and unambiguous on
its face must be enforced to give effect to the meaning of its terms and the reasonable expectations
of the parties (Gert/er v Davidoff Hutcher & Citron LLP, 186 AD3d 801, 805 [2d Dept 2020]
[* 20] 20 of 26 !FILED: KINGS COUNTY CLERK 03/04/2026 11: 19 AM! INDEX NO. 505356/2023 NYSCEF DOC. NO. 821 RECEIVED NYSCEF: 03/04/2026
[citations omitted]). "[C]ourts may not by construction add or excise terms, nor distort the
meaning of those used and thereby make a new contract for the parties under the guise of
interpreting the writing" (Willsey v Gjuraj, 65 AD3d 1228, 1230 [2d Dept 2009] [internal quotation
marks and external citations omitted]). "Evidence outside the four corners of the document as to
what was really intended but unstated or misstated is generally inadmissible to add to or vary the
writing" (WWW Assoc.~. v Giancontieri, 77 NY2d 157, 162 [1990] [citations omitted]). "[W]here
two seemingly conflicting contract provisions reasonably can be reconciled, a court is required to
do so and to give both effect" (LI Equity Network, LLC v Villa,?e in the Woods Owners Corp., 79
AD3d 26, 35 [2d Dept 2010] [citations omitted]).
Here, the court finds the AP A is unambiguous regarding the following issues in dispute.
First, the Handwritten Portion stating that "[iJf this agreement is terminated without cause,
Associate Producer can still maintain book of business and receive 40% commission from this
book'' means that Kliger can obtain 40% commissions on his existing book of business, which, as
asserted by Kliger, replaces the buy-out provision in the APA. To the extent Kliger's initial
position in his complaint or the damages calculation conducted by Kliger' s expert fails to align
with this interpretation, that does not preclude the court from arriving at this conclusion.
Moreover, '·book of business" clearly refers to Kliger's pre-termination accounts with Fairmont.
Fairmont fails to explain why Kliger's "book of business" cannot also mean Fairmonf s
clients/accounts. In addition, Fairmont fails to explain why the foregoing definition cannot co-
exist with sections 5, 7, and 24 of the AP A. The interpretation pressed by Fairmont, that "book of
business" can only refer to future accounts placed with Fairmont by Kliger ignores completely the
handwTitten words "can still maintain" and does not make economic sense for the reason stated by
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Kliger, i.e .. if the clause pertains only to business that Kliger brought into Fairmont in the future,
the Handwritten Portion would only be stating the obvious.
Notwithstanding the foregoing, there is nothing in the APA supporting Kliger's position
that Fairmont is obligated to provide Kliger indefinite access to AMS post-termination to
"maintain" the book of business. The APA does not require Fairmont to do so. The mere fact that
AMS access would aid Kliger in servicing his '"book of business" is not a basis to create an
obligation in the APA that does not exist. There is also no support for Kliger's position that he is
entitled to a commission rate of 45% post-termination since the Handwritten Portion
unambiguously states 40%.
Turning to the Lakewood Agreement, Kliger seeks a declaratory judgment that he has a
"continuing right under the Lakewood Agreement to payment from Fairmont of a monthly salary
of $2,000 and a 10% overriding commission on insurance business placed by producers in
Fairmont's Lakewood office." However, the Lakewood Agreement is clear that the monthly salary
was for managing the Lakewood branch. Thus, there is no basis for Fairmont to pay Kliger a
monthly salary when he is not a manager of the Lakewood office.
Regarding the override, the Lakewood Agreement provides that, where Kliger is no longer
the manager, "Kliger will continue to receive the override on any existing policies." Fairmont
insists that there are no "existing policies'' and that Kliger is improperly seeking the override on
"renewal" policies. However. Fairmont fails to establish as a maner of law that ( 1) there are no
more '"existing policies" as defined by Fairmont; and (2) that a renewal of an existing policy does
not constitute an "existing policy'· for the purpose of compensation under the Lakewood
Agreement. In addition, given that the override is afforded to Kliger even when he is "no longer
the manager," Fairmont fails to establish as a maner oflaw that Kliger would not be entitled to the
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override on "existing policies" post-termination. Thus, whether Kliger is owed any override
compensation under the Lakewood Agreement remains an issue for trial.
Turning to the enforceability of the APA 's restrictive covenants, "[r]estrictive covenants
contained in employment contracts arc disfavored by the courts, and thus. are to be enforced only
if reasonably limited temporally and geographically, and to the extent necessary to protect the
employer's use of trade secrets or confidential customer information" (Gilman & Ciocia, Inc. v
Randello, 55 AD3d 871, 872 [2d Dept 2008] [citations omitted]). ''The employer has a legitimate
interest in preventing former employees from exploiting or appropriating the goodwill of a client
or customer, which had been created and maintained at the employer's expense, to the employer's
competitive detriment" (BDO Seidman v Hirshberg, 93 NY2d 382, 392 [ 1999] [citations omitted]).
''A restraint is reasonable only if it: ( l) is no greater than is required for the protection of the
legitimate interest of the employer, (2) does not impose undue hardship on the employee, and (3)
is not injurious to the public" (id. at 388-389 [1999] [citations omitted]).
Here, Fairmont established that it has a legitimate interest in preventing former employees
from exploiting or appropriating the goodwill of its clients, who have been maintained at its
expense and to its competitive detriment (see Davis v Marshall & Sterling, Inc., 217 AD3d 1073,
1076 [3d Dept 2023]). However, the subject restrictive covenant, to the extent that it bars
solicitation or acceptance of business from any of Fairmont's clients, as opposed to solely those
clients that worked with or had relationships with Kliger, is overbroad (see Brown & Brown, Inc.
v Johnson, 25 NY3d 364, 370-371 [2015]; see also BDO Seidman, 93 NY2d at 392-393; see also
Good Energy. L.P. v Kosachuk, 49 AD3d 331,332 [1st Dept 2008]). Although Kliger also argues
that the three-year duration of the restrictive covenants is overbroad, the court finds that three years
is reasonable (see Good Energy. L.P. v Kosachuk, 49 AD3d at 332 [finding five-year restrictive
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covenant reasonable in terms of duration]; see also Gelder Medical Group v Webber, 41 NY2d
680, 685 [ 1977] [finding it reasonable to limit the noncom petition term to five years]).
Where the "'employer demonstrates an absence of overreaching, coercive use of dominant
bargaining power, or other anti-competitive misconduct, but has in good faith sought to protect a
legitimate business interest, consistent with reasonable standards of fair dealing, partial
enforcement [of a restrictive covenant] may be justified" (BDO Seidman. 93 NY2d at 394).
'"Courts regularly "blue pencil" non-solicitation restrictive covenants so that they only enjoin [a]
former employee's solicitations of clients for whom the employee serviced" ( VMS Solutions, Inc.
v Biosound Emote, Inc., 2010 N.Y. Misc. LEXIS 7106, *80 [Sup Ct, Westchester Cty 2010]
Here, the instant matter is an appropriate case for the court to exercise its discretion and
"blue line" the restrictive covenant so that it is narrowly tailored to protect Fairmont's legitimate
interest in protecting the good will of the customers Kliger serviced. Thus, the restrictive covenant,
at§ 27(a), is modified to the extent that Kliger shall only be restricted from soliciting or accepting
new or renewal business from those accounts at Fairmont that were produced by him. Kliger's
argument that Fairmont cannot restrict him from accepting his former Fairmont clients that leave
Fairmont voluntarily and not by his solicitation is not sufficiently supported.
To the extent Kliger argues that Fairmont's termination without cause bars its enforcement
of the restrictive covenants, the court finds this assertion to be without merit (see Davis v Marshall
& Sterling, Inc., 217 AD3d at 1075 [finding that, because plaintiffs do not assert that defendant
denied them access to any postemployment benefits that they are entitled to receive, Post v Merrill
Lynch, Pierce, Fenner & Smith, 48 NY2d 847 [1979] is inapplicable and the circumstances of their
terminations are irrelevant to the question of enforceability of the restrictive covenant]). This is
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especially so where the APA, under the Handwritten Portion, provides for post-termination
compensation to Kliger. In addition, although Kliger contends that the Handwritten Portion
undermines the enforceability of the restrictive covenant, Kliger fails to adequately explain why
the restrictive covenants and the Handwritten Portion cannot co-exist.
To the extent Kliger argues that the restrictive covenants are not enforceable due to
Fairmont's breach of the APA, it is unclear which party breached the APA first and thus triable
issues remain for resolution (see Meteor Industries, Inc. v Meta/lay Industries, Inc., 104 AD2d
440, 442 [2d Dept 1984 ]). Although Fairmont contends it did not breach the APA, Fairmont's
failure to compensate Kliger pursuant to the Hand'-"Titten Portion constitutes a breach of the AP A.
However, Fairmont has demonstrated that Kliger breached the AP A by disclosing confidential
information to Creative, Bayrock and Sterling and by soliciting Fairmont's clients and informing
them of his own brokerage, Creative. in breach of his duty of loyalty. Moreover, to the extent
Kliger has accepted, through Creative, any of Fairmont's clients within his "book of business,"
Kliger is in breach of the APA's restrictive covenant. The timing of the foregoing events, however,
is unclear. Accordingly, such issues are reserved for trial.
Lastly, that portion of the Kliger Parties' motion seeking dismissal of Fairmont's third-
party complaint against Drebin is granted as Fairmont fails to meaningfully dispute that the relief
is warranted. As for Fairmont's motion seeking certain adverse inferences due to Kliger's failure
to provide discovery bearing on his damages, specifically, records related to premiums and
payments that either Kliger or Creative received from pre-termination clients that left Fairmont
and moved to Creative since February 2023, which has already been the subject of a motion to
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strike filed by Fairmont under motion sequence 23, 3 the court finds that a striking of Kliger's
pleadings. in whole or in part, would be the more appropriate relief. However, this issue shall be
fleshed out on the record at a conference prior to trial.
Conclusion
Based on the foregoing, the motions by Bayrock and Sterling (MS 24, 25, 28) seeking
summary judgment is granted to the extent that the third-party complaint is dismissed as against
them. The motions are otherwise denied. The motions by the Kliger Parties and Fairmont (MS 26
and 27) seeking summary judgment as against the other are granted to the extent indicated above
and otherwise denied. In light of the rulings issued in this decision, the Kliger Parties and Fairmont
shall stipulate to the outstanding issues remaining for trial and submit same to the court by March
11 th • Any argument not explicitly addressed herein was considered and either deemed to be
without merit or unnecessary to address in light of the court's determination.
ENTER:
Honorable Reginald A. Boddie Justice, Supreme Court
HON. REGiNALD A. BODDIE .J.S.C.
3 By decision dated October 20, 2025, Kliger was directed to provide the outstanding discovery by November 6, 2025. In the event of such failure, the decision states that the "court may strike the pleading, award fees, or provide other relief without the need for an additional motion.
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