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FILED: NEW YORK COUNTY CLERK 11/20/2022 10:00 PM INDEX NO. 654390/2022
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/20/2022
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
Index No. 654390/2022
THOM FILICIA, INC., Motion Seq. 001
Plaintiff, AFFIRMATION OF GLEN
SILVERSTEIN IN OPPOSITION TO
-against-
TFI’S REQUEST FOR A
KENNETH SMITH GARDNER a/k/a K. SMITH TEMPORARY RESTRAINING
GARDNER, ORDER
Defendant. Hon. Lucy Billings
GLEN SILVERSTEIN, ESQ., an attorney duly admitted to practice before this Court in
the above-captioned case, hereby affirms under penalty of perjury and pursuant to CPLR 2106
as follows:
1. I am a partner with the law firm Leader Berkon Colao & Silverstein LLP,
counsel for Defendant Kenneth Smith Gardner a/k/a K. Smith Gardner (“Gardner” or
“Defendant”). I am fully familiar with the facts and circumstances in this action.
2. I respectfully submit this affirmation in opposition to the motion of Thom Filicia,
Inc. (“TFI” or “Plaintiff”), requesting that the Court issue a temporary restraining order against
Gardner.
3. As set forth in more detail below, and contrary to the explicit terms of the
parties’ Employment Agreement, TFI wrongly seeks to enjoin Gardner from pursuing his
livelihood and from working with a former TFI client that TFI had severed its relationship with
and expressly stated that it would no longer do business with. In this context, and given TFI’s
nearly four month delay in requesting injunctive relief after it sent its “Cease and Desist” letter,
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TFI’s attempt to unreasonably restrict Gardner’s business is unwarranted and disfavored under
New York law, and this motion for a temporary restraining order should be denied.
Introduction
4. Contrary to the picture TFI attempts to paint in its papers, this action is really
about a dispute between John and Kimberly Mezzalingua (the “Mezzalinguas”) and TFI. The
Mezzalinguas are former clients of TFI and were not clients of TFI at the time Gardner began
doing business with the Mezzalinguas. See Affidavit of Kenneth Smith Gardner, dated
November 20, 2022 (“Gardner Aff.”), ¶ 17.) Indeed, TFI’s acrimonious relationship with the
Mezzalinguas came to a halting end in April 2022, when TFI definitively severed its working
relationship with the Mezzalinguas. (Gardner Aff., ¶ 13.)
5. In fact, by email dated April 7, 2022, an email that is ignored by all of the
affidavits submitted by TFI, TFI’s Chief Operating Officer, Rosalie Catalfamo, aggressively
ended TFI’s relationship with the Mezzalinguas by stating that TFI was unwilling to provide
any further services for them. (Gardner Aff., ¶¶ 13-14.) This vitriolic email was the final blow
and a bitter end to the working relationship between TFI and the Mezzalinguas. (Gardner Aff.,
¶¶ 12-15.)
6. At the time TFI terminated its relationship the Mezzalinguas, Gardner was no
longer an employee of TFI. Consistent with prior notice that Gardner gave in or around January
2022, in March 2022, Gardner left TFI and started up his own interior design business – a fact
TFI was well aware of at the time. (Gardner Aff., ¶¶ 7, 9.)
7. Notably, it wasn’t until well after TFI severed its relationship with the
Mezzalinguas that the Mezzalinguas sought to retain Gardner for his services. (Gardner Aff., ¶
17.)
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8. Thus, and despite TFI’s intentional omission of these critical facts, there can be
no dispute that at the time Gardner began doing business with the Mezzalinguas, the
Mezzalinguas were former TFI clients. Accordingly, whatever prohibitions that may exist in the
Employment Agreement concerning soliciting “TFI clients and potential clients,” those
restrictions simply do not apply to former clients like the Mezzalinguas, especially given the
fact that TFI itself terminated its relationship with them.
9. Nor can TFI credibly argue, after kicking the Mezzalinguas to the curb, that TFI
will be irreparably harmed by Gardner doing business with the Mezzalinguas.
10. Certainly, TFI was well aware of Gardner’s business relationship with the
Mezzalinguas as far back as July 2022. In fact, TFI raised the very same arguments and
concerns related to the Mezzalinguas and the use of vendors in a letter to Gardner in August
2022. Yet, TFI did nothing for nearly four months. The reason for this is simple: TFI has not
suffered nor will it suffer any harm – much less irreparable harm – from Gardner doing business
with the Mezzalinguas – a former client that TFI has made abundantly clear that it has no
interest in ever doing business with.
Background
11. TFI is a company that provides interior design services. (Compl., ¶ 8.)
12. In May 2017, Gardner was hired by TFI and executed an Employment
Agreement. (Gardner Aff., ¶ 6.) Notably, pursuant to Section 2(a) of the Employment
Agreement, the parties agreed that the nonsolicitation provision would only apply to present TFI
customers or potential TFI customers – not terminated customer relationships:
Nonsolicitation of Clients. During the Term and for two (2) years
thereafter, I shall not, directly or indirectly, alone or as a
consultant, partner, freelancer, independent contractor or employee
of any entity, solicit, accept or do business with any TFI customer
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or potential customer whom I had (i) contact with, or (ii)
Confidential Information about, during the Term.
(Employee Agreement at §2 (a)) (emphasis added.)
13. During the course of Gardner’s employment with TFI, Gardner was assigned to
work with TFI clients John and Kimberly Mezzalingua related to a project located in
Skaneateles, New York (the “Project”). (Gardner Aff., ¶ 6.)
14. In or around January 2022, Gardner advised TFI that he would be leaving the
company in order to start his own interior design business. (Gardner Aff., ¶ 7.)
15. Given Gardner’s good working relationship with the Mezzalinguas, and prior to
Gardner’s departure, TFI, the Mezzalinguas, and Gardner discussed potential working
relationships so that all three could continue working together on the Project after Gardner’s
departure from TFI. Since the relationship between TFI and the Mezzalinguas was
deteriorating, Gardner offered this proposal to TFI so that the parties could continue to work
together. This was done in an effort to save the relationship between TFI and the Mezzalinguas.
(Gardner Aff., ¶ 8.) While TFI suggests that these discussions were somehow nefarious and
imply that Gardner had “taken steps” to breach the Employment Agreement, TFI fails to
acknowledge that not only did TFI approve these discussions but they also participated in these
discussions. Ultimately, TFI, the Mezzalinguas, and Gardner could not reach an agreement.
(See TFI Memo at 6-7.)
16. In March 2022, as per Gardner’s prior notice, Gardner left TFI in order to start
his own interior design business. (Gardner Aff., ¶ 9.)
17. In April 2022, the TFI and Mezzalingua relationship began to deteriorate beyond
repair. (Gardner Aff., ¶ 10.)
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18. Specifically, by email dated April 5, 2022, the Mezzalinguas voiced their
frustrations with TFI and noted that TFI was not addressing their issues nor providing
satisfactory services:
TFI has NOT addressed and provided a satisfactory solution to the
issues and requests made through John’s e-mail weeks ago. You
have made this complicated and laborious. To be clear, you have
made this difficult and time consuming and have not taken the
responsibility commensurate with the money that has been spent
and so called relationship that you have claimed we have.
19. Attached hereto as Exhibit A is a true and correct copy of the April 5, 2022
Email between Rosalie Catalfamo (TFI) and Kimberly Mezzalingua. (Gardner Aff., ¶ 11.)
20. Given the escalating issues between TFI and the Mezzalinguas, TFI finally and
decisively severed its relationship with the Mezzalinguas two days later. Attached hereto as
Exhibit B is a true and correct copy of an April 7, 2022 Email from Rosalie Catalfamo (TFI) to
Kimberly Mezzalingua (the “April 7 Email”). (See also Gardner Aff., ¶¶ 13-14.)
21. Indeed, as Catalfamo aggressively made clear to the Mezzalinguas on April 7,
2022, TFI was unwilling to provide any further services to the Mezzalinguas:
Please be advised that with respect to any alleged issue that you
may have with respect to any services and/or furnishings
purchased through TFI, we refer you to the parties ’Agreement and
TFI’s terms and conditions. . . . At this point . . . TFI is unwilling
to provide any further services to you and John. You have
breached our Agreement and as such TFI is hereby terminating
its agreement with you . . . We will issue our final invoice setting
forth all fees associated with the extensive number of hours
expended by TFI in selecting and proposing furnishings, layouts
and schemes for your home and our loss revenue . . . This would
have been an amazing three-year project, however it has have
turned it into a seven-year debacle due to you trying to rig the
process to your benefit at the expense of others. It’s very
disrespectful and hurtful.
(emphasis added) (see also Gardner Aff., ¶¶ 13-14.)
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22. Thus, as of April 7, 2022, TFI, by their own choice, had kicked the Mezzalinguas
to the curb and terminated their business relationship for good with the Mezzalinguas. This was
the ending of a long and acrimonious relationship. (Gardner Aff., ¶¶ 12-15.)
23. With TFI having terminated its relationship with the Mezzalinguas, and in need
of a new interior designer to finish the Project, the Mezzalinguas began doing business with
Gardner after TFI severed its ties with the Mezzalinguas. (Gardner Aff., ¶¶ 17.)
24. Given the bitter ending to its relationship with the Mezzalinguas, and apparently
upset with the fact that Gardner was now doing business with them, TFI vindictively sent a
“Cease and Desist” letter to Gardner on August 2, 2022, misleadingly and wrongly asserting
that Gardner was in violation of the Employment Agreement by attempting to work for a TFI
client – the Mezzalinguas.
25. TFI’s August 2, 2022 letter also asserted vague allegations that Gardner was also
contacting TFI vendors and using confidential information.
26. On August 12, 2022, Gardner promptly responded to TFI’s meritless assertions.
In doing so, Gardner reminded TFI that the Mezzalinguas were former clients of TFI, that it was
TFI that voluntarily terminated its relationship with the Mezzalinguas, that at no time did he
ever solicit a TFI client, and that he has complied with and will continue to comply with his
obligations with respect to legally protected information. Attached hereto as Exhibit C is a true
and correct copy of the August 12, 2022 Letter.
27. After receiving Gardner’s response, TFI did nothing for nearly four months.
28. On November 17, 2022, TFI ran into Court requesting the extreme remedy of a
temporary restraining order. In doing so, TFI asserts that it will be irreparably harmed if
Gardner continues to do business with the Mezzalinguas. TFI also asserts that Gardner has been
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utilizing TFI’s vendors. In other words, the allegations asserted by TFI in its motion are the
very same allegations that TFI raised back in August 2022, and was well aware of as early as
July 2022. Nevertheless, TFI asserts that emergency relief is necessary.
TFI’s Request for a Temporary Restraining Order Should be Denied
29. “Temporary restraining orders and preliminary injunctions are among ‘the most
drastic tools in the arsenal of judicial remedies,’ and must be used with great care.” See Anwar
v. Fairfield Greenwich Ltd., 728 F. Supp. 2d 462, 472 (S.D.N.Y. 2010) (citation omitted).
Indeed, Courts in New York have recognized that such interim relief is “an extraordinary and
drastic remedy which should not be routinely granted.” See Med. Soc. of State of N. Y. v. Toia,
560 F.2d 535, 538 (2d Cir. 1977).
30. Pursuant to New York law, injunctive relief is only appropriate where a plaintiff
“can show a probability or likelihood of success on the merits, a danger of irreparable injury
without such relief, and a balancing of the equities in its favor.” See U.S. Reinsurance Corp. v.
Humphreys, 205 A.D.2d 187, 191 (1st Dep’t 1994).
31. Moreover, “New York law subjects contractual non-compete provisions to an
overriding limitation of reasonableness . . . [and] an agreement not to compete will be enforced
only if “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.”
See Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, 813 F. Supp. 2d 489, 506
(S.D.N.Y. 2011) (citations and internal quotations omitted)
32. Notably, New York law also requires restrictive covenants to be strictly
construed. See Lodging Sols., LLC v. Miller, No. 19-CV-10806 (AJN), 2020 WL 6875255, at
*4 (S.D.N.Y. Nov. 23, 2020).
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33. Here, the nonsolicitation provision in the Employment Agreement only applies to
present TFI customers or potential TFI customers – not terminated customer relationships:
Nonsolicitation of Clients. During the Term and for two (2) years
thereafter, I shall not, directly or indirectly, alone or as a
consultant, partner, freelancer, independent contractor or employee
of any entity, solicit, accept or do business with any TFI customer
or potential customer whom I had (i) contact with, or (ii)
Confidential Information about, during the Term. (Employee
Agreement at §2 (a)) (emphasis added.)
34. Despite the clear and unambiguous language, TFI attempts to rewrite the terms of
Employment Agreement, broaden its scope, and somehow suggest that the non-solicitation
provision should also apply to all former TFI clients:
“My office attempted to remedy this situation directly with
Defendant, but was rebuffed with an insincere letter from
Defendant’s counsel arguing that Defendant was in full compliance
with his obligations under the non-solicitation clause because the
Mezzalinguas were no longer a client of TFI (this last assertion
being made without proof).” (See R. John Aff. ¶ 9, ECF. No. 9.)
35. This is precisely the situation that was addressed by the Southern District of New
York in Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, 813 F. Supp. 2d at
506. Indeed, in rejecting plaintiff’s attempt to rewrite the terms of a non-solicitation provision
to include former clients, the court recognized that the provision agreed to by the parties only
prohibited the solicitation of current clients. The court observed that, as is the case here, had
the parties intended to include both current and former clients, it would have been easy enough
to do so:
the non-solicitation provision appears to prohibit only the
solicitation of current (as opposed to former) clients of Pure
Power. In particular, the provision provides, in relevant part, that
“you shall not ... solicit any client or customer of [Pure Power] to
discontinue his or her use of [Pure Power's] services or to use the
competing products or services of another business.” . . . Had
Plaintiffs intended to include both current and former clients of
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Pure Power under the non-solicitation provision of the
Employment Agreement, it would have been easy enough to so
state . . . They did not do so and any attempt to construe the
provision to prohibit the solicitation of former Pure Power clients,
which is not tied to the use of proprietary information, would be
unreasonable.
36. Thus, under the clear terms of the Employment Agreement, there could not be a
violation of the nonsolicitation provision in regard to the Mezzalinguas as that relationship had
been terminated by TFI. Nor did Gardner ever solicit any “TFI customer.” (Gardner Aff., ¶ 17.)
37. Instead, as the evidence demonstrates, it was not until well after TFI terminated
its relationship with the Mezzalinguas that the Mezzalinguas began doing business with Gardner.
(Gardner Aff., ¶ 17.) This is perfectly acceptable under the terms of the parties’ Employment
Agreement.
38. TFI’s overblown complaints concerning one proposal and three vendor invoices is
also meritless.
39. Any vendors that Gardner may have worked with after he left the employment of
TFI are widely known in the interior design industry and service many customers. In fact, during
Gardner’s time employed by TFI, the vendors Gardner worked with are widely known in the
interior design industry, are referenced on the internet, and service many customers. These
vendors includes those that have storefronts in New York City, publicly accessible showrooms at
in major design centers, advertise to designers, and run websites directed to interior designers.
(Gardner Aff., ¶ 21.); see also Ken J. Pezrow Corp. v. Seifert, 197 A.D.2d 856, 857 (4th Dep’t
1993) (“where an employer’s customer lists ‘are readily ascertainable from sources outside its
business, trade secret protection will not attach and their solicitation by the employee will not be
enjoined.’”)
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40. The fact that a vendor may have mistakenly believed that Gardner was still
associated with TFI during the infancy of Gardner’s start-up of his business in no way supports
the extreme remedy of a restraining order. (Gardner Aff., ¶ 23.) Nor does it demonstrate any
violation of legally protected information.
41. Likewise, the identity of well-known artists and artwork is also not a protectable
interest that could support the relief requested by TFI. In any event, the proposal that TFI
complains of that includes well known furnishings and artwork is irrelevant. Gardner never
utilized that proposal nor purchased any of that artwork or furnishings for the Mezzalinguas.
42. In sum, TFI apparently seeks to enjoin Gardner because he incurred $2,023.30 in
vendor invoices and for the improper reason of preventing him from working with a former TFI
client. This is the very definition of unreasonable.
43. Moreover, TFI’s motion utterly fails to satisfy any of the requirements for
injunctive relief under New York law. Indeed, in addition to TFI’s failure to demonstrate
irreparable harm, TFI does not even come close to showing a probability or likelihood of success
on the merits and a balancing of the equities in its favor. Accordingly, TFI’s motion should be
denied.
TFI’s Delay in Seeking a Restraining Order Further Supports the Denial of TFI’s Motion
44. TFI’s motion should also be denied for the independent reason that its delay in
filing this motion further demonstrates the absence of irreparable harm.
45. As TFI’s own motion admits, TFI became aware by July 2022, at the latest, that
Gardner was potentially working with a former TFI client. Indeed, on August 2, 2022, Plaintiff
sent a letter to Gardner complaining about the very same issues raised in this motion – that
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Defendant was improperly working with the Mezzalinguas and Gardner’s alleged use of TFI’s
vendors.
46. Gardner promptly responded to Plaintiff’s letter on August 12, 2022.
47. Under New York law, in order to obtain a restraining order, Plaintiff must “show
that immediate and irreparable injury, loss or damages will result unless the defendant is
restrained before a hearing can be had.” See N.Y. C.P.L.R. 6313.
48. In confirming that it was not suffering any harm - imminent or otherwise - TFI
did nothing in response.
49. In fact, TFI sat on its hands until November 17, 2022 when it filed the present
motion. Notably, and aside from a vague assertion that TFI was “investigating,” TFI provides no
real explanation in its papers for this four month delay. And despite TFI’s four month
“investigation,” TFI’s motion papers assert the very same allegations related to one former client
– the Mezzalinguas – and TFI’s concerns over the use of its vendors as it did back in August
2022. The only real difference is now, after four months, TFI has attached three vendor invoices
amounting to grand total of $2,023.30. This is not irreparable harm.
50. Indeed, under these circumstances, courts have consistently held that the mere
delay in filing a request for a temporary restraining order demonstrates the absence of irreparable
harm. Cortland Line Co. v. Vincent, No. 98-CV-259, 1998 WL 542332, at *4 (N.D.N.Y. Aug.
18, 1998) (stating “[a]lthough this delay may not warrant the denial of the ultimate relief
[sought], it may ‘standing alone . . . preclude the granting of preliminary injunctive relief.’”);
Citibank. N.A. v. Citytrust, 756 F.2D 273 (2d Cir. 1985) (recognizing that a delay may indicate
the absence of irreparable harm); Century Time Ltd. v. Interchron Ltd., 729 F. Supp. 366, 369
(S.D.N.Y. 1990) (observing, in a 6 month delay, that “we recognize that plaintiffs, because of
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their delay in acting to preserve and protect their asserted rights, are unlikely to be able to
demonstrate the required irreparable harm”); Comic Strip, Inc. v. Fox Television Stations, Inc.,
710 F. Supp. 976, 981 (S.D.N.Y. 1989) (holding that a seven month delay precluded injunctive
relief).
51. This is precisely the situation here. Despite learning of Gardner’s involvement
with the Mezzalinguas in July 2022, and after sending a Cease and Desist letter in August 2022,
TFI did not move for injunctive relief until November 17, 2022 – four months later. In doing so,
TFI raises nothing new. TFI cannot now assert that it has or will suffer irreparable harm absent
emergency relief.
WHEREFORE, I respectfully request that Plaintiff’s request for a temporary restraining
order be denied.
Dated: New York, New York
November 20, 2022
____/s/ Glen Silverstein______________
GLEN SILVERSTEIN
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FILED: NEW YORK COUNTY CLERK 11/20/2022 10:00 PM INDEX NO. 654390/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/20/2022 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK Index No. 654390/2022 THOM FILICIA, INC., Motion Seq. 001 Plaintiff, AFFIRMATION OF GLEN SILVERSTEIN IN OPPOSITION TO -against- TFI’S REQUEST FOR A KENNETH SMITH GARDNER a/k/a K. SMITH TEMPORARY RESTRAINING GARDNER, ORDER Defendant. Hon. Lucy Billings GLEN SILVERSTEIN, ESQ., an attorney duly admitted to practice before this Court in the above-captioned case, hereby affirms under penalty of perjury and pursuant to CPLR 2106 as follows: 1. I am a partner with the law firm Leader Berkon Colao & Silverstein LLP, counsel for Defendant Kenneth Smith Gardner a/k/a K. Smith Gardner (“Gardner” or “Defendant”). I am fully familiar with the facts and circumstances in this action. 2. I respectfully submit this affirmation in opposition to the motion of Thom Filicia, Inc. (“TFI” or “Plaintiff”), requesting that the Court issue a temporary restraining order against Gardner. 3. As set forth in more detail below, and contrary to the explicit terms of the parties’ Employment Agreement, TFI wrongly seeks to enjoin Gardner from pursuing his livelihood and from working with a former TFI client that TFI had severed its relationship with and expressly stated that it would no longer do business with. In this context, and given TFI’s nearly four month delay in requesting injunctive relief after it sent its “Cease and Desist” letter, 1 of 12 FILED: NEW YORK COUNTY CLERK 11/20/2022 10:00 PM INDEX NO. 654390/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/20/2022 TFI’s attempt to unreasonably restrict Gardner’s business is unwarranted and disfavored under New York law, and this motion for a temporary restraining order should be denied. Introduction 4. Contrary to the picture TFI attempts to paint in its papers, this action is really about a dispute between John and Kimberly Mezzalingua (the “Mezzalinguas”) and TFI. The Mezzalinguas are former clients of TFI and were not clients of TFI at the time Gardner began doing business with the Mezzalinguas. See Affidavit of Kenneth Smith Gardner, dated November 20, 2022 (“Gardner Aff.”), ¶ 17.) Indeed, TFI’s acrimonious relationship with the Mezzalinguas came to a halting end in April 2022, when TFI definitively severed its working relationship with the Mezzalinguas. (Gardner Aff., ¶ 13.) 5. In fact, by email dated April 7, 2022, an email that is ignored by all of the affidavits submitted by TFI, TFI’s Chief Operating Officer, Rosalie Catalfamo, aggressively ended TFI’s relationship with the Mezzalinguas by stating that TFI was unwilling to provide any further services for them. (Gardner Aff., ¶¶ 13-14.) This vitriolic email was the final blow and a bitter end to the working relationship between TFI and the Mezzalinguas. (Gardner Aff., ¶¶ 12-15.) 6. At the time TFI terminated its relationship the Mezzalinguas, Gardner was no longer an employee of TFI. Consistent with prior notice that Gardner gave in or around January 2022, in March 2022, Gardner left TFI and started up his own interior design business – a fact TFI was well aware of at the time. (Gardner Aff., ¶¶ 7, 9.) 7. Notably, it wasn’t until well after TFI severed its relationship with the Mezzalinguas that the Mezzalinguas sought to retain Gardner for his services. (Gardner Aff., ¶ 17.) 2 2 of 12 FILED: NEW YORK COUNTY CLERK 11/20/2022 10:00 PM INDEX NO. 654390/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/20/2022 8. Thus, and despite TFI’s intentional omission of these critical facts, there can be no dispute that at the time Gardner began doing business with the Mezzalinguas, the Mezzalinguas were former TFI clients. Accordingly, whatever prohibitions that may exist in the Employment Agreement concerning soliciting “TFI clients and potential clients,” those restrictions simply do not apply to former clients like the Mezzalinguas, especially given the fact that TFI itself terminated its relationship with them. 9. Nor can TFI credibly argue, after kicking the Mezzalinguas to the curb, that TFI will be irreparably harmed by Gardner doing business with the Mezzalinguas. 10. Certainly, TFI was well aware of Gardner’s business relationship with the Mezzalinguas as far back as July 2022. In fact, TFI raised the very same arguments and concerns related to the Mezzalinguas and the use of vendors in a letter to Gardner in August 2022. Yet, TFI did nothing for nearly four months. The reason for this is simple: TFI has not suffered nor will it suffer any harm – much less irreparable harm – from Gardner doing business with the Mezzalinguas – a former client that TFI has made abundantly clear that it has no interest in ever doing business with. Background 11. TFI is a company that provides interior design services. (Compl., ¶ 8.) 12. In May 2017, Gardner was hired by TFI and executed an Employment Agreement. (Gardner Aff., ¶ 6.) Notably, pursuant to Section 2(a) of the Employment Agreement, the parties agreed that the nonsolicitation provision would only apply to present TFI customers or potential TFI customers – not terminated customer relationships: Nonsolicitation of Clients. During the Term and for two (2) years thereafter, I shall not, directly or indirectly, alone or as a consultant, partner, freelancer, independent contractor or employee of any entity, solicit, accept or do business with any TFI customer 3 3 of 12 FILED: NEW YORK COUNTY CLERK 11/20/2022 10:00 PM INDEX NO. 654390/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/20/2022 or potential customer whom I had (i) contact with, or (ii) Confidential Information about, during the Term. (Employee Agreement at §2 (a)) (emphasis added.) 13. During the course of Gardner’s employment with TFI, Gardner was assigned to work with TFI clients John and Kimberly Mezzalingua related to a project located in Skaneateles, New York (the “Project”). (Gardner Aff., ¶ 6.) 14. In or around January 2022, Gardner advised TFI that he would be leaving the company in order to start his own interior design business. (Gardner Aff., ¶ 7.) 15. Given Gardner’s good working relationship with the Mezzalinguas, and prior to Gardner’s departure, TFI, the Mezzalinguas, and Gardner discussed potential working relationships so that all three could continue working together on the Project after Gardner’s departure from TFI. Since the relationship between TFI and the Mezzalinguas was deteriorating, Gardner offered this proposal to TFI so that the parties could continue to work together. This was done in an effort to save the relationship between TFI and the Mezzalinguas. (Gardner Aff., ¶ 8.) While TFI suggests that these discussions were somehow nefarious and imply that Gardner had “taken steps” to breach the Employment Agreement, TFI fails to acknowledge that not only did TFI approve these discussions but they also participated in these discussions. Ultimately, TFI, the Mezzalinguas, and Gardner could not reach an agreement. (See TFI Memo at 6-7.) 16. In March 2022, as per Gardner’s prior notice, Gardner left TFI in order to start his own interior design business. (Gardner Aff., ¶ 9.) 17. In April 2022, the TFI and Mezzalingua relationship began to deteriorate beyond repair. (Gardner Aff., ¶ 10.) 4 4 of 12 FILED: NEW YORK COUNTY CLERK 11/20/2022 10:00 PM INDEX NO. 654390/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/20/2022 18. Specifically, by email dated April 5, 2022, the Mezzalinguas voiced their frustrations with TFI and noted that TFI was not addressing their issues nor providing satisfactory services: TFI has NOT addressed and provided a satisfactory solution to the issues and requests made through John’s e-mail weeks ago. You have made this complicated and laborious. To be clear, you have made this difficult and time consuming and have not taken the responsibility commensurate with the money that has been spent and so called relationship that you have claimed we have. 19. Attached hereto as Exhibit A is a true and correct copy of the April 5, 2022 Email between Rosalie Catalfamo (TFI) and Kimberly Mezzalingua. (Gardner Aff., ¶ 11.) 20. Given the escalating issues between TFI and the Mezzalinguas, TFI finally and decisively severed its relationship with the Mezzalinguas two days later. Attached hereto as Exhibit B is a true and correct copy of an April 7, 2022 Email from Rosalie Catalfamo (TFI) to Kimberly Mezzalingua (the “April 7 Email”). (See also Gardner Aff., ¶¶ 13-14.) 21. Indeed, as Catalfamo aggressively made clear to the Mezzalinguas on April 7, 2022, TFI was unwilling to provide any further services to the Mezzalinguas: Please be advised that with respect to any alleged issue that you may have with respect to any services and/or furnishings purchased through TFI, we refer you to the parties ’Agreement and TFI’s terms and conditions. . . . At this point . . . TFI is unwilling to provide any further services to you and John. You have breached our Agreement and as such TFI is hereby terminating its agreement with you . . . We will issue our final invoice setting forth all fees associated with the extensive number of hours expended by TFI in selecting and proposing furnishings, layouts and schemes for your home and our loss revenue . . . This would have been an amazing three-year project, however it has have turned it into a seven-year debacle due to you trying to rig the process to your benefit at the expense of others. It’s very disrespectful and hurtful. (emphasis added) (see also Gardner Aff., ¶¶ 13-14.) 5 5 of 12 FILED: NEW YORK COUNTY CLERK 11/20/2022 10:00 PM INDEX NO. 654390/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/20/2022 22. Thus, as of April 7, 2022, TFI, by their own choice, had kicked the Mezzalinguas to the curb and terminated their business relationship for good with the Mezzalinguas. This was the ending of a long and acrimonious relationship. (Gardner Aff., ¶¶ 12-15.) 23. With TFI having terminated its relationship with the Mezzalinguas, and in need of a new interior designer to finish the Project, the Mezzalinguas began doing business with Gardner after TFI severed its ties with the Mezzalinguas. (Gardner Aff., ¶¶ 17.) 24. Given the bitter ending to its relationship with the Mezzalinguas, and apparently upset with the fact that Gardner was now doing business with them, TFI vindictively sent a “Cease and Desist” letter to Gardner on August 2, 2022, misleadingly and wrongly asserting that Gardner was in violation of the Employment Agreement by attempting to work for a TFI client – the Mezzalinguas. 25. TFI’s August 2, 2022 letter also asserted vague allegations that Gardner was also contacting TFI vendors and using confidential information. 26. On August 12, 2022, Gardner promptly responded to TFI’s meritless assertions. In doing so, Gardner reminded TFI that the Mezzalinguas were former clients of TFI, that it was TFI that voluntarily terminated its relationship with the Mezzalinguas, that at no time did he ever solicit a TFI client, and that he has complied with and will continue to comply with his obligations with respect to legally protected information. Attached hereto as Exhibit C is a true and correct copy of the August 12, 2022 Letter. 27. After receiving Gardner’s response, TFI did nothing for nearly four months. 28. On November 17, 2022, TFI ran into Court requesting the extreme remedy of a temporary restraining order. In doing so, TFI asserts that it will be irreparably harmed if Gardner continues to do business with the Mezzalinguas. TFI also asserts that Gardner has been 6 6 of 12 FILED: NEW YORK COUNTY CLERK 11/20/2022 10:00 PM INDEX NO. 654390/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/20/2022 utilizing TFI’s vendors. In other words, the allegations asserted by TFI in its motion are the very same allegations that TFI raised back in August 2022, and was well aware of as early as July 2022. Nevertheless, TFI asserts that emergency relief is necessary. TFI’s Request for a Temporary Restraining Order Should be Denied 29. “Temporary restraining orders and preliminary injunctions are among ‘the most drastic tools in the arsenal of judicial remedies,’ and must be used with great care.” See Anwar v. Fairfield Greenwich Ltd., 728 F. Supp. 2d 462, 472 (S.D.N.Y. 2010) (citation omitted). Indeed, Courts in New York have recognized that such interim relief is “an extraordinary and drastic remedy which should not be routinely granted.” See Med. Soc. of State of N. Y. v. Toia, 560 F.2d 535, 538 (2d Cir. 1977). 30. Pursuant to New York law, injunctive relief is only appropriate where a plaintiff “can show a probability or likelihood of success on the merits, a danger of irreparable injury without such relief, and a balancing of the equities in its favor.” See U.S. Reinsurance Corp. v. Humphreys, 205 A.D.2d 187, 191 (1st Dep’t 1994). 31. Moreover, “New York law subjects contractual non-compete provisions to an overriding limitation of reasonableness . . . [and] an agreement not to compete will be enforced only if “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.” See Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, 813 F. Supp. 2d 489, 506 (S.D.N.Y. 2011) (citations and internal quotations omitted) 32. Notably, New York law also requires restrictive covenants to be strictly construed. See Lodging Sols., LLC v. Miller, No. 19-CV-10806 (AJN), 2020 WL 6875255, at *4 (S.D.N.Y. Nov. 23, 2020). 7 7 of 12 FILED: NEW YORK COUNTY CLERK 11/20/2022 10:00 PM INDEX NO. 654390/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/20/2022 33. Here, the nonsolicitation provision in the Employment Agreement only applies to present TFI customers or potential TFI customers – not terminated customer relationships: Nonsolicitation of Clients. During the Term and for two (2) years thereafter, I shall not, directly or indirectly, alone or as a consultant, partner, freelancer, independent contractor or employee of any entity, solicit, accept or do business with any TFI customer or potential customer whom I had (i) contact with, or (ii) Confidential Information about, during the Term. (Employee Agreement at §2 (a)) (emphasis added.) 34. Despite the clear and unambiguous language, TFI attempts to rewrite the terms of Employment Agreement, broaden its scope, and somehow suggest that the non-solicitation provision should also apply to all former TFI clients: “My office attempted to remedy this situation directly with Defendant, but was rebuffed with an insincere letter from Defendant’s counsel arguing that Defendant was in full compliance with his obligations under the non-solicitation clause because the Mezzalinguas were no longer a client of TFI (this last assertion being made without proof).” (See R. John Aff. ¶ 9, ECF. No. 9.) 35. This is precisely the situation that was addressed by the Southern District of New York in Pure Power Boot Camp, Inc. v. Warrior Fitness Boot Camp, LLC, 813 F. Supp. 2d at 506. Indeed, in rejecting plaintiff’s attempt to rewrite the terms of a non-solicitation provision to include former clients, the court recognized that the provision agreed to by the parties only prohibited the solicitation of current clients. The court observed that, as is the case here, had the parties intended to include both current and former clients, it would have been easy enough to do so: the non-solicitation provision appears to prohibit only the solicitation of current (as opposed to former) clients of Pure Power. In particular, the provision provides, in relevant part, that “you shall not ... solicit any client or customer of [Pure Power] to discontinue his or her use of [Pure Power's] services or to use the competing products or services of another business.” . . . Had Plaintiffs intended to include both current and former clients of 8 8 of 12 FILED: NEW YORK COUNTY CLERK 11/20/2022 10:00 PM INDEX NO. 654390/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/20/2022 Pure Power under the non-solicitation provision of the Employment Agreement, it would have been easy enough to so state . . . They did not do so and any attempt to construe the provision to prohibit the solicitation of former Pure Power clients, which is not tied to the use of proprietary information, would be unreasonable. 36. Thus, under the clear terms of the Employment Agreement, there could not be a violation of the nonsolicitation provision in regard to the Mezzalinguas as that relationship had been terminated by TFI. Nor did Gardner ever solicit any “TFI customer.” (Gardner Aff., ¶ 17.) 37. Instead, as the evidence demonstrates, it was not until well after TFI terminated its relationship with the Mezzalinguas that the Mezzalinguas began doing business with Gardner. (Gardner Aff., ¶ 17.) This is perfectly acceptable under the terms of the parties’ Employment Agreement. 38. TFI’s overblown complaints concerning one proposal and three vendor invoices is also meritless. 39. Any vendors that Gardner may have worked with after he left the employment of TFI are widely known in the interior design industry and service many customers. In fact, during Gardner’s time employed by TFI, the vendors Gardner worked with are widely known in the interior design industry, are referenced on the internet, and service many customers. These vendors includes those that have storefronts in New York City, publicly accessible showrooms at in major design centers, advertise to designers, and run websites directed to interior designers. (Gardner Aff., ¶ 21.); see also Ken J. Pezrow Corp. v. Seifert, 197 A.D.2d 856, 857 (4th Dep’t 1993) (“where an employer’s customer lists ‘are readily ascertainable from sources outside its business, trade secret protection will not attach and their solicitation by the employee will not be enjoined.’”) 9 9 of 12 FILED: NEW YORK COUNTY CLERK 11/20/2022 10:00 PM INDEX NO. 654390/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/20/2022 40. The fact that a vendor may have mistakenly believed that Gardner was still associated with TFI during the infancy of Gardner’s start-up of his business in no way supports the extreme remedy of a restraining order. (Gardner Aff., ¶ 23.) Nor does it demonstrate any violation of legally protected information. 41. Likewise, the identity of well-known artists and artwork is also not a protectable interest that could support the relief requested by TFI. In any event, the proposal that TFI complains of that includes well known furnishings and artwork is irrelevant. Gardner never utilized that proposal nor purchased any of that artwork or furnishings for the Mezzalinguas. 42. In sum, TFI apparently seeks to enjoin Gardner because he incurred $2,023.30 in vendor invoices and for the improper reason of preventing him from working with a former TFI client. This is the very definition of unreasonable. 43. Moreover, TFI’s motion utterly fails to satisfy any of the requirements for injunctive relief under New York law. Indeed, in addition to TFI’s failure to demonstrate irreparable harm, TFI does not even come close to showing a probability or likelihood of success on the merits and a balancing of the equities in its favor. Accordingly, TFI’s motion should be denied. TFI’s Delay in Seeking a Restraining Order Further Supports the Denial of TFI’s Motion 44. TFI’s motion should also be denied for the independent reason that its delay in filing this motion further demonstrates the absence of irreparable harm. 45. As TFI’s own motion admits, TFI became aware by July 2022, at the latest, that Gardner was potentially working with a former TFI client. Indeed, on August 2, 2022, Plaintiff sent a letter to Gardner complaining about the very same issues raised in this motion – that 10 10 of 12 FILED: NEW YORK COUNTY CLERK 11/20/2022 10:00 PM INDEX NO. 654390/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/20/2022 Defendant was improperly working with the Mezzalinguas and Gardner’s alleged use of TFI’s vendors. 46. Gardner promptly responded to Plaintiff’s letter on August 12, 2022. 47. Under New York law, in order to obtain a restraining order, Plaintiff must “show that immediate and irreparable injury, loss or damages will result unless the defendant is restrained before a hearing can be had.” See N.Y. C.P.L.R. 6313. 48. In confirming that it was not suffering any harm - imminent or otherwise - TFI did nothing in response. 49. In fact, TFI sat on its hands until November 17, 2022 when it filed the present motion. Notably, and aside from a vague assertion that TFI was “investigating,” TFI provides no real explanation in its papers for this four month delay. And despite TFI’s four month “investigation,” TFI’s motion papers assert the very same allegations related to one former client – the Mezzalinguas – and TFI’s concerns over the use of its vendors as it did back in August 2022. The only real difference is now, after four months, TFI has attached three vendor invoices amounting to grand total of $2,023.30. This is not irreparable harm. 50. Indeed, under these circumstances, courts have consistently held that the mere delay in filing a request for a temporary restraining order demonstrates the absence of irreparable harm. Cortland Line Co. v. Vincent, No. 98-CV-259, 1998 WL 542332, at *4 (N.D.N.Y. Aug. 18, 1998) (stating “[a]lthough this delay may not warrant the denial of the ultimate relief [sought], it may ‘standing alone . . . preclude the granting of preliminary injunctive relief.’”); Citibank. N.A. v. Citytrust, 756 F.2D 273 (2d Cir. 1985) (recognizing that a delay may indicate the absence of irreparable harm); Century Time Ltd. v. Interchron Ltd., 729 F. Supp. 366, 369 (S.D.N.Y. 1990) (observing, in a 6 month delay, that “we recognize that plaintiffs, because of 11 11 of 12 FILED: NEW YORK COUNTY CLERK 11/20/2022 10:00 PM INDEX NO. 654390/2022 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/20/2022 their delay in acting to preserve and protect their asserted rights, are unlikely to be able to demonstrate the required irreparable harm”); Comic Strip, Inc. v. Fox Television Stations, Inc., 710 F. Supp. 976, 981 (S.D.N.Y. 1989) (holding that a seven month delay precluded injunctive relief). 51. This is precisely the situation here. Despite learning of Gardner’s involvement with the Mezzalinguas in July 2022, and after sending a Cease and Desist letter in August 2022, TFI did not move for injunctive relief until November 17, 2022 – four months later. In doing so, TFI raises nothing new. TFI cannot now assert that it has or will suffer irreparable harm absent emergency relief. WHEREFORE, I respectfully request that Plaintiff’s request for a temporary restraining order be denied. Dated: New York, New York November 20, 2022 ____/s/ Glen Silverstein______________ GLEN SILVERSTEIN 12 12 of 12