Indeck Energy Servs., Inc. v. Merced Capital, L.P.

Indeck Energy Servs., Inc. v. Merced Capital, L.P.

Opinion

 [**407]   [*455]  Judgment, Supreme Court, New York County (Jennifer Schecter, J.), entered November 13, 2020, in favor of plaintiff and against defendants, and appeal therefrom bringing up for review order, same court (Shirley Werner Kornreich, J.), entered on or about February 9, 2018, which, inter alia, granted plaintiff's motion for summary judgment as to liability on the breach of contract claim and granted defendants' motion for summary judgment dismissing the claims for aiding and abetting breach of fiduciary duty and misappropriation of trade secrets, and order, same court (Jennifer Schecter, J.), entered on or about October 15, 2020, after a nonjury trial, which directed that judgment be entered in favor of plaintiff, unanimously affirmed, with costs. Order, same court (Jennifer Schecter, J.), entered December 8, 2020, which denied defendants' motion to correct the judgment pursuant to CPLR 5019(a), unanimously affirmed, with costs. Appeals from order, same court and [***3]  Justice, entered on or about May 7, 2019, which denied plaintiff's motion to reargue, renew and amend the complaint, and from the February 9, 2018 and October 15, 2020 orders, unanimously dismissed, without costs, as subsumed in the appeals from the judgment.

 [*456]  Supreme Court correctly determined that defendants violated section 2 of the mutual confidentiality agreement by using information from a study commissioned by plaintiff. The court also correctly determined that defendants violated the non-solicitation provision of the mutual confidentiality agreement by engaging two of plaintiff's employees through a limited liability company. The non-solicitation provision prohibits the parties from soliciting, hiring, or engaging the other's employees. Exception (iii) by its plain  [**408]  language provides a carve out only for soliciting and hiring under limited circumstances, where the other's employees initiate discussion regarding employment. It does not contain an exception for engaging the other's employees, as defendants did here, through a limited liability company. While the non-solicitation provision specifically prohibits "engag[ing]" the other's employees, the omission of that term in the third exception [***4]  to the provision "must be assumed to have been intentional" (United States Fid. & Guar. Co. v Annunziata, 67 NY2d 229, 233, 492 N.E.2d 1206, 501 N.Y.S.2d 790 [1986]). The parties are sophisticated entities, and we would be "extremely reluctant to interpret an agreement as impliedly stating something which the parties have neglected to specifically include" (Vermont Teddy Bear Co. v 538 Madison Realty Co., 1 NY3d 470, 475, 807 N.E.2d 876, 775 N.Y.S.2d 765 [2004] [internal quotation marks omitted]).

We reject defendants' contention that plaintiff failed to establish the elements of its claim for lost profits damages (see Kenford Co. v County of Erie, 67 NY2d 257, 261, 493 N.E.2d 234, 502 N.Y.S.2d 131 [1986]). The mutual confidentiality agreement demonstrates that lost profits damages were fairly within the contemplation of the parties by expressly contemplating that a breach could imperil their businesses  [****2]  and that they could pursue any available remedy.

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