SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

303 

CA 15-01277 

PRESENT: WHALEN, P.J., PERADOTTO, LINDLEY, NEMOYER, AND SCUDDER, JJ. 

 

 

JOHN G. ULLMAN & ASSOCIATES, INC., 

PLAINTIFF-RESPONDENT, 

V MEMORANDUM AND ORDER

BCK PARTNERS, INC., MICHAEL B. BONO, SARAH 

CREATH AND JAMES A. KAFFENBARGER, 

DEFENDANTS-APPELLANTS. 

 

LECLAIR KORONA GIORDANO COLE, LLP, ROCHESTER (STEVEN E. COLE OF

COUNSEL), FOR DEFENDANTS-APPELLANTS. 

HINMAN, HOWARD & KATTELL, LLP, BINGHAMTON (JEANETTE N. WARREN OF

COUNSEL), FOR PLAINTIFF-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Steuben County (Peter

C. Bradstreet, A.J.), entered July 21, 2015. The order granted the

motion of plaintiff for a preliminary injunction. 

It is hereby ORDERED that the order so appealed from is

unanimously reversed on the law without costs, the motion is denied

and the preliminary injunction is vacated. 

Memorandum: Plaintiff, a financial services firm, commenced this

action seeking to enforce restrictive covenants in an employment

agreement signed by the individual defendants when they were hired by

plaintiff. Approximately one month before they resigned from their

employment with plaintiff, the individual defendants formed their new

venture, defendant BCK Partners, Inc. (BCK Partners). After

submitting their resignations, the individual defendants publicly

announced that BCK Partners would establish a permanent office to

provide financial services on the same street as plaintiff. Plaintiff

thereafter moved for a preliminary injunction enjoining defendants

from offering financial services within 50 miles of plaintiff’s

office, soliciting plaintiff’s clients, and disclosing plaintiff’s

proprietary information, all allegedly pursuant to the restrictive

covenants in the individual defendants’ employment agreements. We

conclude that Supreme Court erred in granting plaintiff’s motion. 

It is well settled that “ ‘[p]reliminary injunctive relief is a

drastic remedy [that] is not routinely granted’ ” (Sutherland Global

Servs., Inc. v Stuewe, 73 AD3d 1473, 1474). “In order to prevail on a

motion for a preliminary injunction, the moving party has the burden

of demonstrating, by clear and convincing evidence, (1) a likelihood
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CA 15-01277 

of success on the merits, (2) irreparable injury in the absence of

injunctive relief, and (3) a balance of equities in its favor”

(Eastman Kodak Co. v Carmosino, 77 AD3d 1434, 1435). Here, we

conclude that plaintiff failed to establish by clear and convincing

evidence either a likelihood of success on the merits or irreparable

injury. 

With respect to plaintiff’s likelihood of success on the merits,

we conclude that plaintiff failed to establish that the restrictive

covenants at issue were necessary to protect its legitimate business

interests, or that the individual defendants provide “unique or

extraordinary” services (Riedman Corp. v Gallager, 48 AD3d 1188, 1189;

see generally BDO Seidman v Hirshberg, 93 NY2d 382, 389). With

respect to irreparable injury, plaintiff asserted in support of the

motion that it would suffer some unspecified damage to its “goodwill

and reputation,” and those conclusory allegations “do not establish

that irreparable harm will result in the absence of injunctive relief”

(A. John Merola, M.D., P.C. v Telonis, 127 AD2d 1007, 1007). It is

also unclear from this record whether the “goodwill” relating to the

clients who have transferred their business from plaintiff to

defendants belongs to plaintiff or the individual defendants (see BDO

Seidman, 93 NY2d at 393; Reidman Corp., 48 AD3d at 1190; Scott,

Stackrow & Co., C.P.A.’s, P.C. v Skavina, 9 AD3d 805, 806, lv denied 3

NY3d 612). Nor did plaintiff establish that it would not have “an

adequate remedy in the form of monetary damages” and thus would suffer

irreparable injury in the absence of a preliminary injunction (Destiny

USA Holdings, LLC v Citigroup Global Mkts. Realty Corp., 69 AD3d 212,

220), even if the monetary damages in this case are capable of

calculation only “with some difficulty” (SportsChannel Am. Assoc. v

National Hockey League, 186 AD2d 417, 418). 

Entered: May 6, 2016 Frances E. Cafarell

Clerk of the Court