Pencom Systems, Inc. v. Shapiro

Appellate Division of the Supreme Court of New York

Pencom Systems, Inc. v. Shapiro

193 A.D.2d 561, 598 N.Y.S.2d 212, 1993 N.Y. App. Div. LEXIS 5321

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 27, 1993

StatusPublished

Cited by8 cases

This text of 193 A.D.2d 561 (Pencom Systems, Inc. v. Shapiro) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Pencom Systems, Inc. v. Shapiro, 193 A.D.2d 561, 598 N.Y.S.2d 212, 1993 N.Y. App. Div. LEXIS 5321 (N.Y. Ct. App. 1993).

Pincite

Opinion

Order, Supreme Court, New York County (Harold Baer, Jr., J.), entered August 6, 1992, which granted defendant’s motion pursuant to CPLR 4404 (b) for a new trial as to damages, unanimously affirmed, without costs.

The court found that defendant, a former employee of plaintiff, breached a restrictive covenant not to compete following his departure from plaintiff’s employ. As a result, we agree with Trial Term that the proper measure of damages is the net profit of which plaintiff was deprived by reason of defendant’s improper competition with plaintiff (Support Sys. Assocs. v Tavolacci, 135 AD2d 704, 707; Weinrauch v Kashkin, 64 AD2d 897, 898). Disgorgement of defendant’s profits would be the proper measure of damage if defendant had used the trade secrets for his own benefit while still in plaintiff’s employ.

Moreover, Trial Term correctly declined to issue an injunction since the parties’ employment agreement contained but a one-year nonsolicitation clause and the one year has long since passed. A permanent injunction need not issue where [562]*562plaintiff may be made whole in damages. Concur—Murphy, P. J., Milonas, Kupferman, Ross and Nardelli, JJ.

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Order, Supreme Court, New York County (Harold Baer, Jr., J.), entered August 6, 1992, which granted defendant’s motion pursuant to CPLR 4404 (b) for a new trial as to damages, unanimously affirmed, without costs.

The court found that defendant, a former employee of plaintiff, breached a restrictive covenant not to compete following his departure from plaintiff’s employ. As a result, we agree with Trial Term that the proper measure of damages is the net profit of which plaintiff was deprived by reason of defendant’s improper competition with plaintiff (Support Sys. Assocs. v Tavolacci, 135 AD2d 704, 707; Weinrauch v Kashkin, 64 AD2d 897, 898). Disgorgement of defendant’s profits would be the proper measure of damage if defendant had used the trade secrets for his own benefit while still in plaintiff’s employ.

Moreover, Trial Term correctly declined to issue an injunction since the parties’ employment agreement contained but a one-year nonsolicitation clause and the one year has long since passed. A permanent injunction need not issue where [562]*562plaintiff may be made whole in damages. Concur—Murphy, P. J., Milonas, Kupferman, Ross and Nardelli, JJ.

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Bluebook (online)

193 A.D.2d 561, 598 N.Y.S.2d 212, 1993 N.Y. App. Div. LEXIS 5321, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pencom-systems-inc-v-shapiro-nyappdiv-1993.

Opinion

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