Westcom Corp. v. Dedicated Private Connections, LLC

[121] Order and judgment (one paper), Supreme Court, New York County (Ira Gammerman, J.), entered May 27, 2003, which, after a nonjury trial, directed the corporate defendant to, inter alia, discontinue its business, adjudged defendant Feldman in breach of her fiduciary duty and awarded plaintiff $68,814.15 as a result of said breach, enjoined defendants Feldman, Lopez and Isaac from working for a competitor of plaintiff for 18 months, similarly enjoined defendant Palmieri for 12 months, and referred the amount of plaintiffs attorneys’ fees for a hearing, unanimously modified, on the law, to delete the reference, and otherwise affirmed, with one bill of costs to plaintiff payable by defendants-appellants. The trial court’s determinations, that defendants’ services to plaintiff while in plaintiffs employ were of a special character and that information appropriated by defendants was confidential, were based on a fair interpretation of the evidence (see Thoreson v Penthouse Intl., 80 NY2d 490, 495 [1992]), which included not only testimony supportive of the court’s findings but also the stipulations in the governing agreements in which defendants acknowledged the special nature of their services and the confidentiality of the information at issue. The restrictions, which have already terminated as to two of the defendants, were reasonable under the circumstances (see BDO Seidman v Hirshberg, 93 NY2d 382, 388-389 [1999]); they were reasonably designed for plaintiff’s protection in light of defendants’ establishment of a competing business, and the evidence of their egregious breach of trust and confidence in physically taking plaintiffs materials (cf. Ruesch Intl. v MacCormack, 222 AD2d 343 [1995]). Feldman’s disgorgement of compensation was appropriate in view of her incorporation, financing and acquisition of equipment for a business to compete with that of plaintiff while still in plaintiffs employ (see CBS Corp. v Dumsday, 268 AD2d 350, 353 [2000]; Bon Temps Agency v Greenfield, 212 AD2d 427, 428 [1995]). In the absence of a contractual provision authorizing the award of attorneys’ fees, the reference was inappropriate, and we modify accordingly. We have considered defendants’ remaining contentions and find them unavailing. Concur—Nardelli, J.P., Saxe, Lerner and Marlow, JJ. [See 9 AD3d —, July 29, 2004.]