On January 13, 2022, Justice Boddie of the Kings County Commercial Division issued a decision in Attentive Home Care Agency, Inc. v. Galinkin, 2022 NY Slip Op. 30110(U), holding that a noncompete provision was enforceable, explaining:
Negative covenants restricting competition are enforceable only to the extent that they satisfy the overriding requirement of reasonableness. The application of the test of reasonableness of employee restrictive covenants focuses on the particular facts and circumstances giving context to the agreement. In this context a restrictive covenant will only be subject to specific enforcement to the extent that it is reasonable in time and area, necessary to protect the employer’s legitimate interests, not harmful to the general public and not unreasonably burdensome to the employee.
Section 3 of the non-compete agreement provided that during Galinkin’s employment, and for one year following the termination thereof, she would not, on her own behalf or on behalf of any other person or entity, directly or indirectly:
a. solicit, invite, advise or encourage any employee, client, customer or patient of the Company, or any of its subsidiaries or affiliates, or any of their officers, directors, employees, agents, successors or assigns (collectively, the “Company Group”) to terminate their relationship with the Company Group; or
b. hire any employee or prospective employee, or take on or provide services to any current or prospective client, customer or patient served by the Company Group that either (x) you had contact with, provided services to, were aware of, managed or supervised at any time during your employment or (y) was an employee, client, customer or patient of the Company Group at any time during the two-year period preceding your termination of employment. However, nothing in this paragraph is
intended to prohibit you from engaging in general solicitations and advertisements that are not specifically directed at the Company Group’s employees, clients, customers or patients.Defendant argued the non-compete agreement restricted her from providing services to every prospective client for two years following the end of defendant’s employment, resulting in the loss of her livelihood. However, a close reading of the agreement indicates otherwise. The subject provision prohibits Galinkin, for a period or one year, from providing services only to clients to whom she provided services while at Attentive. In essence, she was not barred from working as a home health aide to any other client nor barred from working in the City of New York immediately after the end of her employment with Attentive. Therefore, contrary to defendant’s contention, the non-compete agreement did not place any temporal or geographic restriction on Galinkin’s ability to earn a living as a home health aide.
Further, an employer has a legitimate interest, as Attentive alleged here, in seeking to protect against misappropriation of its trade secrets or confidential Customer lists. With respect to harm to the public, a restraint is said to be harmful if it seriously impinges on the availability of a service or causes any significant dislocation in the market or creates a monopoly in those services. Defendant argued this covenant prevents the elderly from choosing their care providers. However, defendant’s argument, without more, is insufficient to establish this prong of the test.
Moreover, the non-compete provision is not unduly burdensome on Galinkin as it only restricted her from servicing Attentive’s clients for one year and permitted her to provide services to other clients not connected with Attentive. Therefore, defendant
(Internal citations omitted).
has failed to refute Attentive’s allegations Galinkin breached an enforceable agreement. Accordingly, defendant’s motion to dismiss based on documentary evidence is denied.