Montrallo v. Fritz

176 A.D.2d 1215

Opinion

— Order, insofar as appealed from, unanimously reversed on the law without costs, motion denied and complaint reinstated. Memorandum: On a motion by defendant Barnes to dismiss plaintiff’s complaint for failure to state a cause of action, the allegations of the complaint are deemed true and plaintiff must be given the benefit of every favorable inference to be drawn therefrom (see, Siegel, NY Prac § 265 [2d ed]). Thus viewed, plaintiff’s complaint adequately sets forth a cause of action for unfair competition against defendant Barnes based upon the alleged misappropriation of plaintiff’s secret customer files by a former employee of plaintiff, allegedly as the result of an agreement between defendant and plaintiff’s former employee and for their benefit (see generally, Prosser and Keeton, Torts § 130, at 1022-1023 [5th ed]). Whether plaintiff’s customer records are entitled to protection and the nature of the agreement between defendant and plaintiff’s former employee are factual issues that cannot be resolved on this motion to dismiss. (Appeals from Order of Supreme Court, Monroe County, Curran, J. — Dismiss Complaint.) Present— Doerr, J. P., Boomer, Green, Lawton and Davis, JJ.