A. N. Deringer, Inc. v. Troia

— Order unanimously modified on the law and as modified affirmed with costs to defendants, in accordance with the following Memorandum: Supreme Court abused its discretion in granting plaintiff a preliminary injunction enforcing, in part, a restrictive non-competition covenant. It is well settled that such covenants are disfavored by the law (see, Columbia Ribbon & Carbon Mfg. Co. v A-l-A Corp., 42 NY2d 496 ; Reed, Roberts Assoes. v Strauman, 40 NY2d 303 , rearg denied 40 NY2d 918 ; Comcast Sound Communications v Hoeltke, 174 AD2d 1023 ; Buffalo Imprints v Scinta, 144 AD2d 1025 ; Newco Waste Sys. v Swartzenberg, 125 AD2d 1004 ). A non-competition covenant should not be enforced by a preliminary injunction where, as in this case, there is a sharp dispute concerning the underlying facts (see, Newco Waste Sys. v Swartzenberg, supra, at 1005 ; Cool Insuring Agency v Rogers, 125 AD2d 758 , 759, mot to dismiss appeal granted 69 NY2d 1037 ; Family Affair Haircutters v Detling, 110 AD2d 745 , 747; Union Kol-Flo Corp. v Basil, 64 AD2d 861 , 862; see also, City of Buffalo v Mangan, 49 AD2d 697 ). Plaintiff’s allegations that defendant Troia, a file clerk, possessed confidential information were conclusory and specu

Furthermore, we observe that Supreme Court erred in failing to direct that plaintiff give an undertaking as a requirement to the granting of the preliminary injunction (see, CPLR 6312 [b]; Sutton, DeLeeuw, Clark & Darcy v Beck, 155 AD2d 962 , 963; Walter Karl, Inc. v Wood, 137 AD2d 22 , 29; Wasus v Young Sun Oh, 86 AD2d 753 ). (Appeals from Order of Supreme Court, Erie County, Francis, J. — Preliminary Injunction.) Present — Denman, P. J., Boomer, Pine, Lawton and Davis, JJ.