EPSTEIN ENGINEERING P.C., plf-res, v. THOMAS CATALDO def-ap, STEVEN GREGORIO, def

7716N-7717N-7718N. EPSTEIN ENGINEERING P.C., plf-res, v. THOMAS CATALDO def-ap, STEVEN GREGORIO, def — Jane M. Myers, P.C., Central Islip (James E. Robinson of counsel), for ap — Warshaw Burstein Cohen Schlesinger & Kuh, LLP, New York (Bruce H. Wiener of counsel), for res — Orders, Supreme Court, New York County (Judith J. Gische, J.), entered February 28, June 1, and June 14, 2011, which, to the extent appealed from as limited by the briefs, decided defendants Thomas Cataldo and Cataldo Engineering, P.C.'s motion for a protective order upon a determination that plaintiff is entitled to damages incurred after the date of Thomas Cataldo's resignation from it arising from defendants' work for clients obtained before Cataldo's resignation, unanimously affirmed, without costs.

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7716N-7717N-7718N. EPSTEIN ENGINEERING P.C., plf-res, v. THOMAS CATALDO def-ap, STEVEN GREGORIO, def — Jane M. Myers, P.C., Central Islip (James E. Robinson of counsel), for ap — Warshaw Burstein Cohen Schlesinger & Kuh, LLP, New York (Bruce H. Wiener of counsel), for res — Orders, Supreme Court, New York County (Judith J. Gische, J.), entered February 28, June 1, and June 14, 2011, which, to the extent appealed from as limited by the briefs, decided defendants Thomas Cataldo and Cataldo Engineering, P.C.’s motion for a protective order upon a determination that plaintiff is entitled to damages incurred after the date of Thomas Cataldo’s resignation from it arising from defendants’ work for clients obtained before Cataldo’s resignation, unanimously affirmed, without costs.

Defendants are alleged to have incorporated a business which directly competed with plaintiff, engaging in a “double life” for a period of 17 months prior to resigning from the company. A faithless servant must account not only for profits attributable to clients poached from the principal, but for all profits ascribable to the wrongful diversion of business (see Maritime Fish Prods. v. World-Wide Fish Prods., 100 AD2d 81, 89 [1st Dept 1984], appeal dismissed 63 NY2d 675 [1984] [noting that even if a faithless servant had first offered a diverted opportunity to the principal, he would not be free to take the business for himself or direct it to a competitor for his profit without the express consent and approval of his employer]).

EPSTEIN ENGINEERING P.C., plf-res, v. THOMAS CATALDO def-ap, STEVEN GREGORIO, def

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