DECISION AND ORDER Petitioner Lisa Dupay (“Petitioner”) seeks a judgment in this declaratory action finding the restrictive covenants contained in her employment agreement with her former employer, Respondent Aeis, LLC (“Respondent”), invalid and unenforceable. Petitioner contends that they impose an undue hardship upon her that is greater than required to protect Respondent’s purported business interests. Petitioner makes this application as she has been offered a position with Bureau Veritas, an international testing, inspection and certification business. Petitioner has approached Respondent and asked if the agreement could be modified or extinguished to allow her to take this position, but Respondent has refused to do so. The employment agreement between the parties included confidentiality, client non-solicitation and anti-competition provisions. The agreement prohibits Petitioner from accepting employment with any of Respondent’s competitors for two years following termination from employment with Respondent. Competitors are defined as any business performing testing, inspection, and certification services within a one hundred (100) mile radius of the Company’s main office in South Plainfield, NJ. (NYSCEF Doc No. 6). More specifically, the anti-competition covenants contained in the employment agreement relevant to this Petition include the following provisions, among others: “Unfair Competition. During the course of your employment with the Company and for two (2) years following the voluntary or involuntary termination of your employment with the Company, You agree to abide by each of the following sub-paragraphs below. a. Leaving Us to Join Our Competitors. You shall not accept employment with any of Our Competitors. “Our Competitors” means any business performing testing, inspection, and certification services within a one hundred (100) mile radius of the Company’s main office in South Plainfield, NJ. b. Non-Interference. You will not directly or indirectly, divert or disrupt (or attempt to divert or disrupt) the business relationship between the Company and Our Clients. c. Non-Solicitation. You will not encourage, solicit or induce any Company employee to leave or terminate his/her employment with the Company nor encourage or assist any person or entity in doing the same. d. Covenant Not to Compete. You will not, without the specific, written consent of AEIS, directly or indirectly own, manage, operate, control, finance, be employed by, consult for, or otherwise participate in a business that performs testing, inspection, and certification services on construction projects within a one hundred (100) mile radius of the Company’s main office in South Plainfield, NJ…. (NYSCEF Doc No. 6). Petitioner also signed a confidentiality agreement, which prohibited her from using the Company’s confidential and trade secret information, except to the extent necessary to provide services or goods requested by Company. Trade secrets are defined in the confidentiality agreement to include but not be limited to customer lists, pricing data, suppliers, financial data and marketing or merchandising systems or plans, as well as inspection and testing procedures, processes and techniques. (NYSCEF Doc NO. 18). According to an officer of Respondent, who submitted an affidavit in opposition to the motion, AEIS provides construction inspection, testing, certification, failure analysis, engineering and material research services for infrastructure projects. Respondent’s view is that this industry is very small, with fewer than 10 impactful companies providing testing and inspection for building and infrastructure construction projects in the New York metro area. Respondent includes Bureau Veritas as one of these 10 companies. It further characterizes Bureau Veritas as its most important and largest competitor in every area of testing, inspection and certification provided by Respondent. Petitioner alleges that the vast majority of AEIS’ business is to perform work on publicly bid infrastructure projects. As such, she approached businesses that were known to the public at large to market these aspects of Respondent’s business, not business contacts that she or Respondent had developed. She characterized her job duties at Respondent as similar to those she performed at other positions she had held within the construction industry, which duties included routinely meeting with various individuals at industry association meetings, or at their offices, or for lunch or drinks in an attempt to effectively market AEIS’ capabilities and achievements, in a continuing effort to foster relationships with clients and potential clients. Petitioner indicates that that she had a decades long career in the construction industry sales, management, business development and client relations positions. Respondent argues that Petitioner’s business developments work for Respondent was highly confidential and that she had access to high level confidential information and trade secrets, including client information; technical information, including test results; methods; inspection and test procedures; inventions; client lists; pricing data; sources of supplies; and financial details. Respondent contends that Petitioner also had access to the identity and specific preferences of AEIS clients; how flexible AEIS can be in accommodating client needs; how AEIS targets potential clients and the identity of potential clients that AEIS has or will target; and what written and/or verbal contracts or understandings were negotiated. Respondent avers that none of this is public information. It further asserts that Petitioner had access to project quote procedures; how projects are managed; and how Respondent drafts proposals. (NYSCEF Doc. No. 14). In response to these points, Petitioner described her position at Respondent business as director of business development in much different terms. Petitioner reports that she learned some “buzz words” regarding Respondent’s business, but that she would refer potential clients to Respondent’s principals who would then discuss technical details. While Respondent employs many scientists and engineers, Petitioner indicates that she does not have “any technical education or background in engineering to begin to understand or reproduce AEIS’ technical information, testing methodologies or procedures, testing formulae or compositions.” She further avers that she never prepared any of AEIS’ bids or proposals, and never gave AEIS’ PowerPoint presentations and lacked the technical and scientific background to do so. She acknowledges attending attend two client “pitch” sessions conducted via Zoom and one conducted in person, run by the Company President. Petitioner describes that this individual in one instance gave a “20 page long, overly technical, onerous presentation — the vast majority I would not be able to replicate even if I tried (which I would not).” (NYSCEF Doc No. 23, No. Para 21). Petitioner had been employed by Respondent for about seven months when, on March 17, 2023, she was terminated from employment from her $140,000 salaried position as Director of Business Development. Petitioner agrees that she was a not a good fit for Respondent company. Petitioner reports that she has had difficulty finding full time work since her termination. Through industry contacts, she found the position she has been offered at Bureau Veritas. Since her termination, she has obtained some work, however, she alleges that at times these were temporary positions from which she was not paid at the level of her experience. She explains that she took these positions merely to make ends meet. She reports that she currently is employed by a facade restoration company for about half of her former salary. She avers that the inability to accept the Bureau Veritas position has caused her financial hardship as a single mother with a child in college and a mortgage. Respondent counters these contentions by listing various open construction related positions found via various websites. Petitioner notes that the job market is difficult and that many of the positions Respondent references are not paid at the same salary level and some would represent a drastic reduction in salary, which would result in an extreme financial hardship. Discussion In this case, there is no dispute that the employment restriction, if upheld, would bar Petitioner from employment with Bureau Veritas. The parties appear not to dispute that Bureau Veritas is a company located within 100 miles from Respondent and is a competitor of Respondent. The issue to be determined is whether Petitioner has met her burden of establishing that she is entitled to a declaratory judgment declaring the employment restriction enforceable as unreasonable. New York courts closely scrutinize restrictive covenants in consideration of the powerful public policy considerations that militate against sanctioning the loss of an individual’s livelihood. (See e.g., Purchasing Assocs., Inc. v. Weitz, 13 N.Y.2d 267, 272 (1963)). Restrictive covenants in employment agreements will be enforced if reasonably limited temporally and geographically, and to the extent necessary to protect the employer’s use of trade secrets or confidential customer information. (Michael G. Kessler & Assocs., Ltd. v. White, 28 A.D.3d 724, 725 (2d Dept. 2006)). The common-law standard of reasonableness for employee agreements not to compete applies a three-pronged test. A restraint is reasonable only if it: (1) is no greater than is required for the protection of the legitimate interest of the employer, (2) does not impose undue hardship on the employee, and (3) is not injurious to the public. A violation of any prong renders the covenant invalid. (BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 389 (1999)). Application of the test of reasonableness of employee restrictive covenants focuses on the particular facts and circumstances giving context to the agreement. (BDO Seidman v. Hirshberg, 93 N.Y.2d at 390). As Petitioner points out, preventing a former employee from using the skills and knowledge from their employment is not a legitimate aim of a restrictive covenant under the relevant case law. Similarly, preventing competition is not a legitimate aim — instead, no restriction should “fetter an employee’s right to apply to his own best advantage the skills and knowledge acquired by the overall experience of his previous employment.” (Reed, Roberts Associates, Inc. v. Strauman, 40 N.Y.2d 303, 307 (1976)). Generally, where customers are readily ascertainable outside the employer’s business, trade secret protection will not attach to customer lists and courts will not enjoin the employee from soliciting his employer’s customers. (Tri-Star Lighting Corp. v. Goldstein, 151 A.D.3d 1102, 58 N.Y.S.3d 448 (2017)). On the other hand, courts also recognize the legitimate interest an employer has in safeguarding that which has made his business successful and to protect himself against deliberate “commercial piracy.” (Reed, Roberts Assocs., Inc. v. Strauman, 40 N.Y.2d 303, 308 (1976)). Restrictive covenants are enforceable to the extent necessary to prevent the disclosure or use of trade secrets or confidential customer information or in circumstances where an employee’s services are unique or extraordinary. This latter principle has been applied regarding employment agreements between members of the “learned professions.” (Ibid). Regarding what constitutes a trade secret, the Court of Appeals has cited with approval section 757 of the Restatement of Torts. The section states that several factors should be considered: “(1) the extent to which the information is known outside of [the] business; (2) the extent to which it is known by employees and others involved in [the] business; (3) the extent of measures taken by [the business] to guard the secrecy of the information; (4) the value of the information to [the business] and [its] competitors; (5) the amount of effort or money expended by [the business] in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others” (Ashland Mgmt. Inc. v. Janien, 82 N.Y.2d 395, 406 (1993) citing, Restatement of Torts §757, comment b). Petitioner argues that the restrictive covenants at issue in this case are unenforceable because they are unreasonable under case law. She argues that she does not have trade secrets, her services are not unique or extraordinary, and the time frame of the restriction — two years — is extremely long, particularly relative to her short tenure at Respondent company. Respondent argues both that the matter is not appropriate for a declaratory judgment as the parties disagree regarding facts material to determining the Petition and that the restrictions are reasonable and enforceable. The Court finds that the restrictions at issue here are reasonable and enforceable. It further finds that, in light of the disparate factual presentations. Petitioner has not met her burden of showing her entitlement to relief. Here, the parties disagree regarding facts that are material to determining whether the restriction is enforceable, including whether information Petitioner possessed was confidential or a trade secret, or information open to the public. Typically, whether information constitutes a trade secret is a question of fact; here the parties provide differing factual assertions regarding the character of this information. (Ashland Mgmt. Inc. v. Janien, 82 N.Y.2d at 407 (whether information is a trade secret is typically a question of fact)). Based on the information provided by the parties, however, the Court finds restrictive covenants are reasonable and enforceable. Petitioner provides much detail in her motion papers and reply papers to argue that no trade secrets were involved, including that: clients frequently or typically came from publicly bid projects, and thus are readily identifiable through public sources; she did not possess technical information, and did not answer technical questions but referred them to professionals; and she did not draft the client proposals. Respondent’s arguments point to the averments of its officer, which include that Petitioner had broad and comprehensive exposure to AEIS’ confidential and proprietary information; insight into its competitive advantages; and knowledge of how Respondent operates and its future plans. Additionally. Respondent argues that Petitioner would be appropriating the goodwill it built with clients. Respondent argues, without significant contradiction, that Petitioner had full access to AEIS’ proposals, bid results, contract review SOPs, and new project forms; AEIS’ project management module; sales pitch templates; client presentations; marketing and sales plans; AEIS’ marketing strategy; target and prospective clients; and rate sheets. Petitioner avers that she attended two “Zoom” and one in-person sales “pitches” to prospective clients. Based on Respondent’s averments. Petitioner would be seen to possess significant, albeit non-technical, confidential information such that the restriction would be reasonably necessary to protect its legitimate interests. This is particularly true since it appears to be uncontested that the intended employer in this matter is engaged in the same subspeciality as Respondent and is a direct competitor in in a small specialty industry. Respondent avers essentially that the intended employer is its chief competitor or one of its chief competitors. Petitioner does not appear to dispute this or the fact that this company engages in the same highly specialized services to builders that she marketed for Respondent. Petitioner contends that potential customers are typically identified through public bids, and thus their identities are not in themselves trade secrets. She also emphasizes her lack of scientific or technical knowledge and the limited nature of her marketing role, to essentially put clients together with Respondent. However, Petitioner does not counter many of Respondent’s concerns regarding good will, knowledge of pricing, SOPS regarding contracting and bids, marketing procedures and operations, and future plans. This potential transfer of such knowledge and good will to the Respondent company’s competitor appears to fit squarely within the reasonable restrictions that are intended to “safeguard that which has made [a] business successful” and to protect against the specter of “commercial piracy.” (Reed, Roberts Assocs., Inc. v. Strauman, 40 N.Y.2d 303, 308 (1976)). The Court further finds that Petitioner has not shown that the restriction is unreasonable in duration. Employment restrictions and non-compete clauses lasting for at two years and in some cases even longer periods have been upheld as reasonable. See, e.g., HBD Inc. v. Ryan, 227 A.D.2d 448 (2d Dept. 1996); Gelder Med. Grp. v. Webber, 41 N.Y.2d 680, 363 N.E.2d 573 (1977) (five-year restriction upheld for partner who left medical practice); Locke v. Tom James Co., No. 11 CIV. 2961 GBD. 2013 WL 1340841, at *9 (S.D.N.Y. Mar. 25, 2013) (“New York courts have consistently held that a two-year prohibition period can be considered reasonable”); Michael G. Kessler & Assocs., Ltd. v. White, 28 A.D.3d 724, 725, 815 N.Y.S.2d 631, 633 (2006) 815 N.Y.S.2d 631 (employed for one month yet restriction of two years found reasonable)). The Court further finds that the restriction does not unduly burden Petitioner, who for decades operated as a marketing and business development professional in the construction field, and who attests to her deep contacts and long-standing relationships within the construction industry. The restriction does not prohibit Plaintiff from so continuing — it only forecloses employment within the apparently narrow field of construction testing, inspection, and certification services industry — a field in which Petitioner worked for seven months out of her 25 years in the construction industry. She may seek employment in the types of positions she held throughout her career — absent the specialty services she engaged in during this seven-month period. While Plaintiff alleges that these opportunities may not be as lucrative as the arrangement she held at Respondent company for seven months, or as lucrative as that currently offered to her by Project Veritas, this contention has not been established by a preponderance of the evidence. Perhaps more significantly, this contention does not constitute an undue burden, particularly since Petitioner worked only briefly within this specialty and the restriction will expire in March 2025. Respondent cites to Battenkill Veterinary Equine P.C. v. Cangelosi, I A.D.3d 856 (3d Dept. 2003), which is instructive. In that case, a restrictive covenant prohibiting a veterinarian from practicing as an equine veterinarian in the same geographic area as her former practice association for a period of time was found that she “is not being deprived of her livelihood, as she is free to practice equine veterinary medicine outside the 35 — mile area, or any other type of veterinary medicine in any location.” (Id. at 859). (See also Flatiron Health, Inc. v. Carson, 602 F. Supp. 3d 482, 487 (S.D.N.Y. 2020), noting in issuing a preliminary injunction that any harm to the employee by the post-employment restriction was mitigated by his ability to pursue other medical work that did not directly compete with the former employer). Here, the Petitioner is employed and can seek employment in the field in which she was employed prior to her short time at Respondent company, but simply cannot be employed during the remainder of restriction at a direct competitor engaged in the same small industry as her former employer. Accordingly, for the reasons stated herein, the relief sought by the Petitioner is hereby DENIED and the Petitioner is hereby DISMISSED. Dated: January 26, 2024
