8974-8975. AON RISK SERVICES plfres, v. MICHAEL CUSACK def, PETER ARKLEY, ETC., def-ap — Frankfurt Kurnit Klein & Selz P.C., New York (Ronald C. Minkoff of counsel), for ap — DLA Piper LLP (US), New York (Shand S. Stephens of counsel), for res — Order, Supreme Court, New York County (Bernard J. Fried, J.), entered July 2, 2012, which, to the extent appealed from as limited by the briefs, denied defendant Peter Arkley’s motion to dismiss a third amended complaint brought by an affiliate of his former employer and its corporate parent (collectively, Aon) on the grounds of a prior action pending and forum non conveniens, unanimously affirmed, with costs. Order, same court (Marcy S. Friedman, J.), entered September 21, 2012, which granted Aon’s motion for a preliminary injunction insofar as it enjoined Arkley, his agents, servants, employees and all other persons acting under his supervision and/or direction from soliciting business from, or entering into any business relationship with, on behalf of the corporate defendant (Alliant), any of Aon’s clients or customers whom he either procured or whose accounts he worked on in the 24 months prior to his departure from Aon on June 13, 2011; enjoined Arkley and his agents, etc. from soliciting any Aon employees to work for Alliant; and directed that Aon post a $1 million bond, unanimously affirmed, with costs.
The court properly exercised its discretion in declining to dismiss or stay this action in light of a prior pending action, commenced by Arkley and his new employer Alliant in California against Aon, seeking primarily a declaration that restrictive covenants in Arkley’s employment agreement, and certain incentive agreements he entered into with Aon, were unenforceable under California law and public policy (see generally CPLR 3211[a] [4]). The California action was commenced only a few days before the instant action, and on the very same date that Arkley and nearly 40 other co-workers departed Aon’s employ to work for Alliant. Arkley simultaneously transferred a significant client base from his former employer over to Alliant, and additional employees of Aon migrated to Alliant’s employ over the next few days. The timing of the commencement of the California action, the declaratory relief sought therein, and the evident disfavor California law holds for restrictive covenants, supports the motion court’s finding that the California action was a preemptive measure undertaken to gain a tactical advantage so as to negate the force and effect of the restrictive covenants, which the parties had freely agreed upon (see generally L-3 Communications Corp. v. SafeNet, Inc., 45 AD3d 1 [1st Dept 2007]; White Light Prods. v. On the Scene Prods., 231 AD2d 90, 96-97 [1st Dept 1997]). While Arkley was not made a party to the instant action until he was impleaded as a defendant nine months after the action’s commencement, in the interim, he was named as a defendant in an Illinois action commenced by Aon, and he was subject to a broad-scoped temporary restraining order in the instant action. Arkley had also participated in the instant action prior to being impleaded.
