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King v Marsh & Mclennan Agency, LLC

Supreme Court of New York, New York County

March 27, 2020, Decided



Barry Ostrager, J.

Before the Court is a motion for partial summary judgment by plaintiff Paul Andrew King ("King") pursuant to CPLR 3212 seeking a declaratory judgment that the Non-Solicitation and Confidentiality Agreement ("the Agreement") King entered into in 2014 with defendants Marsh & McLennan Agency, LLC and Marsh McLennan Companies, Inc. (collectively "Marsh") is unenforceable under the laws of New York State. Marsh has cross-moved for sanctions in the form of attorney's fees pursuant to 22 NYCRR 130-1.1 on the ground that King's motion is frivolous. For the reasons stated below, both motions are denied.

This action is a relatively new one, having been commenced by the filing of a Summons and Complaint on June 25, 2019 (NYSCEF Doc. Nos. 1 and 2), with an Answer filed by Marsh on August 16 (NYSCEF Doc. No. 13). A preliminary conference was held on October 29, 2019 when a discovery order was completed and early settlement was urged by the Court (NYSCEF Doc. No. [*2]  16). Document discovery and responses to interrogatories are hopefully complete or nearly complete by now, as discovery was not stayed by the filing of the motion, but it appears that no depositions have yet been held.

Background Facts

The following background facts are based on allegations in the competing party affidavits submitted with the summary judgment motion and opposition (NYSCEF Doc. Nos. 20 and 45), as the parties' Statements of Material Facts filed in connection with the motion disagree markedly on virtually every point (see NYSCEF Doc. Nos. 19 and 40). Indeed, the essence of Marsh's opposition is that summary judgment is precluded by material issues of fact.

King alleges he was employed by Marsh as a "surety bond agent" beginning in June 2014, although the June 9, 2014 letter he signed to accept the offer describes the position as "Account Executive/Producer — Surety" in the Alexandria, Virginia office (NYSCEF Doc. No. 21). As a condition of his employment, King also signed a "Non-Solicitation and Confidentiality  [**2]  Agreement" on June 9, 2014 ("the Agreement", NYSCEF Doc. No. 22). In that Agreement, King agreed that for a period of two years from his separation from employment, [*3]  whether that separation was voluntary or involuntary, he would not solicit clients, prospective clients, or employees of Marsh. He further acknowledged the confidential nature of his work and agreed to maintain all information in strictest confidence during his employment and after his separation, so long as that information remained "confidential" as defined by the Agreement.

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2020 N.Y. Misc. LEXIS 1319 *; 2020 NY Slip Op 50370(U) **; 67 Misc. 3d 1203(A)

 [**1]  Paul Andrew King, Plaintiff, against Marsh & Mclennan Agency, LLC, a Delaware Limited Liability Company, and Marsh & Mclennan Companies, Inc., a Delaware Corporation, Defendants. Index No. 653707/2019



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