The following papers numbered 1-6 were read on Plaintiff's motion for a preliminary injunction.

Papers Numbered

Order To Show Cause - Affirmation - Exhibits1

Affidavit of Blair C. Fensterstock in Opposition2 [*2]

Affidavit of Joseph Marchese in Opposition - Exhibits3

Affidavit of Claudia Blandi in Opposition - Exhibits4

Memorandum of Law in Opposition5

Reply Affirmation - Exhibits6

Upon the foregoing papers, Arthur J. Gallagher & Co. and Gallagher Benefit Services, Inc. (collectively, "Plaintiff") is an international insurance brokerage and risk management services firm. Plaintiff has over 100 offices with employee benefit services departments in the United States and has almost 10,000 employees world wide. Defendant Joseph Marchese was hired by Plaintiff in October 1999 and Defendant Claudia Balandi was hired by Plaintiff in May 1997 as insurance brokers. What their prior experience and educational background was is not set forth. Each presently holds a life and health insurance license and Blandi has an undergraduate degree. Both were assigned to and worked in Plaintiff's benefits department. Upon their employment, both Marchese and Blandi executed an Executive Agreement. The Agreements are identical, and there is no evidence that either Marchese or Blandi had any ability to negotiate or modify the Agreement (cf Chernoff Diamond & Co. v Fitzmaurice, Inc., 234 AD2d 200, 202 [1st Dept 1996]). The Agreement, after labeling each Defendants as an "Executive," provides that the Executive will be granted access to "Confidential Information" which includes:

"data relating to the Company's unique marketing and servicing programs, procedures and techniques; the criteria and formulae used by the Company in pricing its insurance and benefits products and claims management, loss control and information management services; the structure and pricing of special insurance packages that the Company has negotiated with various underwriters; lists of prospects; the identity, authority and responsibilities of key contacts at Company accounts, the composition and organization of accounts' businesses; the peculiar risks inherent in their operations; highly sensitive details concerning the structure, conditions and extent of their existing insurance coverages; policy expiration dates; premium accounts."

"The Executive recognizes that by virtue of his employment by the Company, he will be afforded numerous and extensive resources to assist him in the solicitation, production and servicing of accounts. The Executive understands and agrees that all efforts that he expends in this regard shall be for the permanent benefit of the Company, that the Company shall secure and retain indefinitely the proprietary interest in all such accounts, and that the Executive will not undertake any action which could in any way disturb the Company's relationship with said accounts."

"The Executive recognizes the highly sensitive nature of the Confidential Information to which he will have access during his employment, and acknowledges the Company's legitimate interest in safeguarding same from disclosure. Accordingly. The Executive agrees that, for a period of two (2) years following the termination of his employment for any reason whatsoever, he will not divulge the Company's Confidential Information or make use of it for his own purpose or the purpose of another."

"The Executive recognizes the Company's legitimate interest in protecting, for a reasonable period of time following the termination of the Executive's employment, those Company accounts with which the Executive will be associated during his employment. Accordingly, the Executive understands and agrees that for a period of two (2) years following the termination of his employment for any reason whatsoever, he will not, directly or indirectly, solicit, place, accept, aid, counsel or consult in the renewal, discontinuance or replacement of any insurance by, or handle self-insurance programs, insurance claims or other insurance administrative functions for, any existing Company account or any actively solicited prospective account of the Company for which he performed any of the foregoing functions during the two-year period immediately preceding such termination."

In order to prevail upon a motion for a preliminary injunction, the moving party has the burden of demonstrating, by clear and convincing evidence, (1) the likelihood of success on the merits of the action, (2) that it will suffer irreparable injury absent the issuance of a preliminary injunction and (3) that the balance of equities is in its favor (CPLR 6301; Nobu Next Door, LLC v Fine Arts Hous., Inc., 4 NY3d 839, 840 [2005]; S.J.J.K. Tennis, Inc. v Confer Bethpage, LLC, ___ AD3d ___, 2011 WL 337794 [2d Dept]; Ingenuit, Ltd. v Harriff, 33 AD3d 589, 590 [2d Dept 2006]; Merrell Benco Agency, Inc. v Safrin, 231 AD2d 614 [2d Dept 1996]).

An employee agreement not to compete will be enforced only if it is reasonable in time and area, necessary to protect the employee's legitimate interests, not harmful to the general public and not unreasonable burdensome. Such agreements are justified by the employer's need to protect itself from unfair competition by former employees. Such covenants will be enforced where the defendant has some unique or extraordinary ability that would give him a competitive advantage or has misappropriated confidential information. Even in the absence of unique or extraordinary abilities or misappropriated confidential information, an employer has a legitimate interest in preventing former employees from exploiting or appropriating the goodwill of a client or customer, which had been created and maintained at the employer's expense, to the employer's competitive detriment. Under such circumstances, a restrictive covenant may prevent the competitive use of client relationships that the employer assisted the employee in developing through the employee's performance of services in the course of employment. A covenant will be unreasonable and therefore unenforceable, however, if it seeks to bar the employee from soliciting clients with whom the employee never acquired a relationship through his or her employment, or if the covenant extends to personal clients of the employee who came to the employer solely to avail themselves of the employee's services and only as a result of his or her own independent recruitment efforts, which the employer neither subsidized nor otherwise [*4]financially supported as part of a program of client development (BDO Seidman v Hirshberg, 93 NY2d 382, 388-94 [1999]; Scott, Stackrow & Co., C.P.A.'s, P.C. v Skavina, 9 AD3d 805, 806 [3d Dept 2004]; Milbrandt & Co. v Griffin, 2004 WL 2532292 [Sup Ct, West. Co]).

Plaintiff bases this application on the assertion that the Defendants were unique employees who breached the Executive Agreement by misappropriating confidential information and by their soliciting and servicing Plaintiff's clients.

Plaintiff has not established that the Defendants were unique employees. They were insurance brokers. Plaintiff predicates their uniqueness upon the following language in the Executive Agreement:

"The Executive recognizes that the rights and privileges granted to him by this Agreement, and his corresponding covenants to the company, are of a special, unique and extraordinary character, the loss of which cannot reasonably or adequately by compensated for in damages . . . ."

Plaintiff asserts that Defendants became privy to Plaintiff's confidential information including it customer lists and trade secrets such as client pricing and profitability rates, and strategies for marketing, soliciting and managing accounts. Additionally, it is alleged that Marchese emailed himself information regarding the Haldane Central School District ("Haldane"), a client of Plaintiff.

In response, the Defendants have submitted evidence that Haldane was Marchesse's personal client and not a client of Plaintiff. Additionally, Defendants have submitted evidence that they did not physically appropriate or copy any purported confidential information, including client files (cf Eastern Business Systems, Inc. v Specialty Business Solutions, LLC, 292 AD2d 336, 337 [2d Dept 2002]), and, in fact, denied having been provided the client marketing information they are accused of misappropriating. In any event, customer lists and contact information, where, as here such information is readily obtainable, as well as an employee's recollection of information pertaining to specific needs and business habits of particular customers is not confidential (Natural Organics, Inc. v Kirkendall, 52 AD3d 488, 489-90 [2d Dept 2008]; Atmospherics, Ltd. v Hansen, 269 AD2d 343 [2d Dept 2000]; Price Paper and Twine Co. v Miller, 182 AD2d 748, 749-50 [2d Dept 1992]).

Finally, Plaintiff accuses Defendants of having brought the following clients of Plaintiff to Alliant: Community College of Pennsylvania, Correctional Medical Care, Reading Hospital and Medical Center, the Senate of Pennsylvania, and the Association to Benefit Children. In response, the Defendants have submitted evidence that the Association to Benefit Children was Marchesse's personal client since 1991. As to the other clients, the Defendants have submitted sworn statements that they did not solicit such clients to leave Plaintiff for Alliant. Additionally, no evidence has been submitted as to the specifics of the Defendants' relationship with these clients, if any, while the Defendants were employed by Plaintiff, and the extent, if any, the [*5]Defendants are servicing these clients now at Alliant (cf BDO Seidman v Hirschberg, 93 NY2d 382, 391-92 [1999]["The risk to the employer reaches a maximum in situations in which the employee must work closely with the client or customer over a long period of time, especially when his services are a significant part of the total transaction"]). Thus, Plaintiff has failed to establish that an injunction is necessary in order to protect its goodwill. Accordingly, motion for a preliminary injunction is denied.

This constitutes the decision and order of the Court.

Dated:White Plains, New York

February, 2011

_____________________________________

Hon. Gerald E. Loehr

Acting J.S.C.