Planet Manufacturing Corp. v. Goldstein

54 A.D.2d 896, 387 N.Y.S.2d 899, 1976 N.Y. App. Div. LEXIS 14723

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 1, 1976
• Status: Published

Opinion

In an action inter alia to enjoin the solicitation by defendants of plaintiffs’ customers, defendants appeal, as limited by their brief, from so much of an interlocutory judgment of the Supreme Court, Kings County, entered July 6, 1976, as, after a nonjury trial, (1) permanently enjoined them from soliciting certain named former customers of the plaintiff corporations, (2) directed them to account for all damages suffered by plaintiffs as a result of the solicitation, (3) directed a reference to hear and determine the amount of damages and (4) continued a preliminary injunction. Interlocutory judgment modified, on the law, by adding thereto after (1) the word "sales” in the third decretal paragraph thereof and (2) the words "by reference were” in the seventh decretal paragraph thereof, the following: "solicited and”. As so modified, interlocutory judgment affirmed insofar as appealed from, with costs to respondents. The facts are affirmed. Upon the record made below, defendants were properly enjoined from soliciting customers of the corporate plaintiffs, the individual defendant having sold his 50% stock interest therein for a substantial sum, based upon the going concern value of the business, and then having set up a competing business (see Von Bremen v MacMonnies, 200 NY 41; Thai v Polumbaum, 196 Mise 897, affd 277 App Div 1115, mod on other grounds 303 NY 686; Gast Furriers Supplies v Winter, 247 App Div 135; Kremer v Kremer, 221 App Div 747). Since, however, there was no restrictive covenant against competition, we have clarified the judgment to provide that plaintiffs are not entitled to damages for unsolicited sales, if any, made by defendants to plaintiffs’ customers. Hopkins, Acting P. J., Martuscello, Cohalan, Margett and Shapiro, JJ., concur.