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FILED: ROCKLAND COUNTY CLERK 01/03/2023 02:56 PM INDEX NO. 031650/2022
NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/28/2022
To commence the 30 day statutory time period for
appeals as of right (CPLR 5513[a]), you are advised
to serve a copy of this order, with notice of entry,
upon all parties.
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF ROCKLAND
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MELANGE REGISTERED NURSE AND NURSE
PRACTITIONER IN FAMILY HEALTH,
Plaintiff, DECISION AND ORDER
Index No.: 031650/2022
-against-
Mot. Seq. Nos.: 1 & 2
MARGARITA SHUB,
Defendant.
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ZUGIBE, J.
In connection with the following: Defendants’ motion to dismiss the amended complaint
pursuant to CPLR 3211(a)(7) and (5), and Plaintiff’s cross-motion seeking a preliminary
injunction enjoining the Defendant from violating the restrictive covenant between the parties,
the Court has read and considered NYSCEF documents 10-19, and 21-28, and hereby renders the
following Decision and Order.
RELEVANT FACTUAL AND PROCEDURAL BACKGROUND
MELANGE REGISTERED NURSE AND NURSE PRACTITIONER IN FAMILY
HEALTH (hereinafter “Plaintiff” or “Melange”) filed a Complaint with the Rockland County
Clerk (“RCC”) on April 13, 2022 asserting two causes of action as against MARGARITA SHUB
(hereinafter “Defendant” or “Shub”). NYSCEF Doc. 1. Specifically, in the original Complaint,
Plaintiff requested that the Court order Defendant to account for any funds received for services
provided to Plaintiff’s clients and/or for services provided within a 25-mile radius of Melange
Spas, in purported accord with the parties’ independent contractor agreement; and sought an
injunction enforcing the non-compete clause set forth in the agreement. Id.
In lieu of Answering the allegations contained in the Complaint, Defendant moved to
dismiss the Complaint pursuant to CPLR 3211(a)(7) and (5). NYSCEF Docs. 3-6. This motion
was designated as motion sequence #1. On August 9, 2022, Plaintiff filed an Amended
Complaint with the RCC. NYSCEF Doc. 9. In addition, Plaintiff cross-moved for a preliminary
injunction against Defendant enforcing the non-compete clause set forth in the parties’
agreement that is the subject of this action. NYSCEF Docs. 10-19. This cross-motion was
designated as motion sequence #2.
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In light of the Plaintiff’s filing of an Amended Complaint, Defendant stipulated to
withdraw motion sequence #1, without prejudice, in order to file a new motion to dismiss the
now amended pleading. NYSCEF Doc. 21. The parties then stipulated as to the briefing
schedule for Plaintiff’s cross-motion, and Defendant’s motion to dismiss the amended pleading.
NYSCEF Doc. 22. The motion to dismiss the amended pleading was not assigned a separate
sequence number, but the motion will be addressed in the instant Decision and Order.
THE AMENDED COMPLAINT
Plaintiff alleges that they operate two medical spas, one in Monroe, New York, and
another in Blauvelt, New York. NYSCEF Doc. 9, ¶3. Plaintiff asserts that its principal place of
business and primary office is its Blauvelt, New York location. Id. at ¶3. Plaintiff provides a
variety of cosmetic and aesthetic services to its clients, such as facials, massages and injectables.
Id. at ¶4-5. Plaintiff alleges that Defendant is a registered nurse licensed in both New York and
New Jersey. Id. at ¶7. Plaintiff alleges that in or around April of 2018, Defendant approached
Melange for training in Botox injections, so that she could work at Melange part-time to provide
that service to Melange clients. Id. at ¶8. Thereafter, for a period of about three years
commencing in or around April 24, 2018, Defendant operated as an independent contractor or
employee of Melange at both of their locations. Id. at ¶9. In this capacity, Defendant came into
possession of confidential information of Melange clients. Id. at ¶8.
Attached to Plaintiff’s Amended Complaint as Exhibit “A” is the independent contractor
agreement allegedly signed by Defendant on or about April 24, 2018. NYSCEF Doc. 9. The
agreement itself does not appear to be dated, however, it is asserted in the Amended Complaint
that it was signed on or about April 24, 2018. Id. Also attached to the Amended Complaint as
Exhibit “B” is the Confidentiality/Security Acknowledgment signed by Defendant on or around
April 24, 2018. Id. In addition, there is a Covenant Not to Compete and Confidentiality
Agreement (hereinafter referred to as the “non-compete agreement”) attached as Exhibit “C.” Id.
This document is signed by Defendant, but not Plaintiff. Id.
It is alleged in the Amended Complaint that in or around March of 2021, Defendant
advised the primary owner of Plaintiff that she wanted to open her own day spa in White Plains,
which is located within 20 miles from Plaintiff’s spa. NYSEF Doc. 9, ¶24. Plaintiff alleges that
the owner indicated she would be willing to consider a modification of the parties’ non-compete
agreement on the condition that Defendant did not interfere with Plaintiff’s efforts to attract
clients in Rockland and Orange Counties, and provided Defendant did not solicit existing
Melange clientele. Id. at ¶25. Pursuant to this conversation, Plaintiff apparently drafted a
modification to the existing non-compete agreement, however Defendant continued to request
additional modifications. Id. at ¶26, 27. It does not appear that the non-compete agreement was
ever officially or formally modified by the parties.
Plaintiff alleges that on January 27, 2022, it was discovered that Defendant was providing
the same services she performed at Melange at another spa known as Image Oasis, which is
located in White Plains. NYSCEF Doc. 9, ¶28. As per Image Oasis’ website, Defendant was the
only staff member performing these services, and “at least one of the clients that Image Oasis
claimed to have served, was a client of Melange…” Id. at ¶29. Plaintiff contends that as a result
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of this breach of the non-compete agreement, they terminated Defendant’s independent
contractor status and requested that Defendant cease and desist from continuing to violate the
terms of the non-compete agreement. Id. at ¶30. As per Plaintiff, the Defendant did not respond
to the cease and desist letter, and currently, she continues to violate the non-compete agreement.
Id. at ¶31-32.
In the Amended Complaint, Plaintiff asserts five causes of action as against Defendant:
(i) breach of the covenant not to compete and confidentiality agreement; (ii) breach of the
confidentiality and security agreement; (iii) breach of the independent contractor agreement; (iv)
a demand for an accounting of all funds Defendant has received as a result of violations of the
contracts; and (v) an injunction prohibiting Defendant from continuing to violate the non-
compete agreement. NYSCEF Doc. 9.
MOTION TO DISMISS THE AMENDED COMPLAINT
In deciding a motion to dismiss, the allegations in a complaint must be construed
liberally, in the light most favorable to the plaintiff, and said allegations must be accepted as
true. Zellner v. Odyl, LLC, 117 A.D.3d 1040, 986 N.Y.S.2d 592 (2d Dept. 2014). If, from the
four corners of the pleading, “‘factual allegations are discerned which taken together manifest
any cause of action cognizable at law’…” the dismissal motion must fail. Id. at 1040 (internal
citation omitted). Whether the complaint will survive a summary judgment motion, or whether
plaintiff will ultimately be able to prove its entitlement to relief, is irrelevant in determining a
CPLR 3211 dismissal motion. See generally, Id.
A. Breach of Contract(s)
Defendant argues that the Amended Complaint fails to state a claim for breach of any of
the contracts referenced therein. First, Defendant points out that the pleading is inconsistent and
therefore unclear in its description of the relationship between the parties. In some instances, it
references the existence of an independent contractor relationship, and in other, an employer-
employee relationship. Essentially, Defendant contends that the semantics matter, and the nature
of the relationship between the parties must be sufficiently alleged to withstand the instant
dismissal motion. More specifically, the undated contract attached as Exhibit “A” to the
Amended Complaint defines Defendant as an independent contractor. The agreement contains
non-compete language. NYSCEF Doc. 9. The Confidentiality/Security Acknowledgment
attached as Exhibit “B” apparently signed by Defendant indicates that Defendant is signing as an
employee or affiliate of Plaintiff and VENUS AESTHETIC SERVICES, LLC. Id. The
Amended Complaint does not specifically define VENUS AESTHETIC SERVICES, LLC.
Finally, the non-compete agreement set forth as Exhibit “C” to the Amended Complaint is not
signed by Plaintiff at all, and indicates that Defendant is an employee of the Plaintiff. Id.
Further, in terms of allegations that any confidentiality agreement was breached,
Defendant argues the Amended Complaint is silent with respect to any facts that indicate
Defendant had access to any particular confidential medical/health information, nor that she then
used confidential information after her relationship with Plaintiff ended.
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Defendant further contends that the two year non-compete agreement violates the statute
of frauds, insofar as it is not capable of enforcement within one year. Based on this violation,
Defendant requests dismissal of the causes of action alleging breach of this agreement pursuant
to CPLR § 3211(a)(5). Based on the foregoing, Defendant requests the Court dismiss the breach
claims set forth in the Amended Complaint.
In opposition, Plaintiff contends that the statute of frauds does not render the non-
compete agreement a nullity. Plaintiff relies on case law that set forth when a contract of
employment is for a definite term, and following the expiration of that term, the employee
continues to render the same services without having expressly entered into a new agreement, it
is presumed that the employee is serving under a new contract with the same terms and
conditions as the original contract. See, Borne Chemical Co. v. Dictrow, 85 A.D.2d 646, 648,
445 N.Y.S.2d 046, 411 (2d Dept. 1981). Further, Plaintiff responds that the Court must only
determine on a pre-discovery motion to dismiss whether a cause of action exists, not whether one
has been explicitly stated. The Court notes that the Plaintiff does not, however, provide any facts
or other documents in opposition to the motion that clear up the nature of the relationship that
existed between the parties at the time the causes of action accrued.
The Court acknowledges that this is not a well plead Complaint, even as amended. The
Court is unclear in drafting this Decision what type of relationship existed between the parties,
and the specific nature of Defendant’s actions that Plaintiff contends violate the purported
agreements attached thereto, other than the allegation that within the two year “restricted period”
defined in the non-compete agreement, Defendant has been working at a spa or salon within
twenty (20) miles of Plaintiff performing same or similar services.
However, from the facts alleged, when viewed in a light most favorable to the Plaintiff,
and giving them every favorable inference, the allegations are minimally sufficient to establish
Defendant may have violated some term or provision of the restrictive covenant contained in
either the independent contractor agreement, or the non-compete agreement. Whether the
Plaintiff will ultimately succeed on these causes of action is not presently before the Court.
Further, the Court declines to dismiss these causes of action based on the statute of frauds
argument based on the reasoning set forth in Borne Chem. Co., supra.
Therefore, Defendant’s motion to dismiss causes of action one, two and three is denied.
B. Accounting
Plaintiff alleges that as a result of providing Defendant with confidential information, a
fiduciary relationship existed such that entitled Plaintiff to an accounting of all funds Defendant
has received as a result of any alleged violations to the agreements referenced in the Amended
Complaint. NYSCEF Doc. 9, ¶51.
Defendant is correct in pointing out that a conventional business relationship without
more is not sufficient to create a fiduciary relationship such that would entitle the Plaintiff to an
accounting. See, DiTolla v. Doral Dental IPA of N.Y., LLC, 100 A.D.3d 586, 953 N.Y.S.2d 155
(2d Dept. 2012). However, New York State law does recognize that a fiduciary duty exists
between employers and employees that survives the termination of the employment relationship.
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See, e.g., Kaufman v. International Bus. Machs. Corp., 97 A.D.2d 925, 927, 470 N.Y.S.2d 720
(3d Dept. 1983) (holding that “[t]he duty of an employee not to use or divulge confidential
knowledge acquired during his employment is implicit in the employer-employee relation, is an
absolute, and not a relative, duty”).
In the instant case, as set forth supra, the Court is not clear the exact relationship between
the parties. The Amended Complaint contains facts which establish some relationship existed,
but whether it was an employer-employee relationship, or whether Defendant served as an
independent contractor, has yet to be ascertained. Therefore, based on the facts as set forth in the
pleading, the Court declines to dismiss this cause of action at this stage in the proceedings,
before any discovery has taken place.
Therefore, Defendant’s motion to dismiss cause of action four is denied.
INJUNCTIVE RELIEF
A. Preliminary Injunction
Plaintiff, by way of cross-motion submitted in response to the filing of the original
motion to dismiss, has made a request for a preliminary injunction enjoining the Defendant from
continuing to violate the restrictive covenant. See, NYSCEF Doc. 19.
Preliminary injunctions are governed by Article 63 of the CPLR. They are intended to
prevent or enjoin a party from doing something while an action is pending. It is well established
that in order to prevail on a motion for a preliminary injunction, the burden falls on the moving
party to establish: (1) a likelihood of success on the merits of the underlying action; (2) imminent
irreparable injury in the absence of the injunction; and (3) that a balancing of the equities favors
the movant’s position. Golden v. Steam Heat, Inc., 216 A.D.2d 440, 442, 628 N.Y.S.2d 375 (2d
Dep’t 1995). A movant must be able to satisfy each of these requirements with “clear and
convincing evidence” County of Suffolk v. Givens, 106 A.D.3d 943, 967 N.Y.S.2d 387 (2d Dept.
2013) (internal citations omitted).
In opposing the cross- motion for a preliminary injunction, Defendant contends that
Plaintiff cannot establish a likelihood of success on the merits, based on the existence of critical
facts which are sharply in dispute. See, Shannon Stables Holding Co. v. Bacon, 135 A.D.2d 804,
805, 522 N.Y.S.2d 908 (2d Dept. 1987). Further, Defendant points out that the facts as alleged
in the Complaint, even if assumed to be true, do not support the contention that Plaintiff needs
protection from unfair competition by reason of Defendant’s use of trade secrets or confidential
health information of former clients. This is, as per Defendant, insufficient to meet the “clear
and convincing evidence” standard required to support a request for a preliminary injunction.
Finally, Defendant argues that Plaintiff has failed to establish that the services she rendered were
of such a special, unique and extraordinary nature that the enforcement of a restrictive covenant
is necessary to protect irreparable damages to Plaintiff’s business. See, TMP Worldwide Inc. v.
Franzino, 269 A.D.2d 332, 703 N.Y.S.2d 183 (1st Dept. 2000) (a request for a preliminary
injunction is properly denied based solely upon conclusory assertions that the enforcement of a
non-competition agreement are reasonable and necessary, absent an actual showing by means of
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“competent evidence” that an individual defendant had access to and misappropriated customer
lists, trade secrets, business plans or other confidential information, or that the defendant’s
services were of such a unique and extraordinary nature).
Defendant also points out that the damages sought by Plaintiff can be classified as
calculable monetary harm. Plaintiff cannot, therefore, establish irreparable harm. See, 306
Rutledge, LLC v. City of New York, 90 A.D.3 1026, 1028, 935 N.Y.S.2d 619 (2d Dept. 2011)
(noting that when plaintiffs can be compensated by a monetary award, an injunction is not
appropriately granted, as no irreparable harm can be sustained in that situation). Based on the
foregoing, in balancing the equities, the Defendant urges the Court to deny the request for a
preliminary injunction.
An injunction is a drastic remedy and must be narrowly tailored to “eliminate the exact
alleged private wrong.” Children’s Village v. Greenburgh Eleven Teachers’ Union Fed’n of
Teachers, Local 1532, 258 A.D.2d 610, 612, 685 N.Y.S.2d 754 (2d Dep’t 1999). The broad
scope of this preliminary injunction would essentially prevent Defendant from engaging in any
type of work or business to which the restrictive covenant referenced above could hypothetically
apply. An injunction in this instance would essentially sanction the loss of Defendant’s
livelihood, and would prevent her from pursuing a similar vocation after loss of her current
employment. To grant an injunction of this nature would be violative of public policy, even if
the restrictive covenant is reasonable in both scope and duration. See, Shannon Stables, supra, at
805-806. Further, although some of the causes of action set forth in the Amended Complaint
have survived a dismissal motion at the earliest stage of this litigation, there are serious and
material facts in dispute, and, further, Plaintiff cannot establish irreparable injury in the absence
of the preliminary injunction.
Looking at all these factors collectively, this Court determines that Plaintiff has not
established its entitlement to a preliminary injunction. Plaintiff’s cross-motion seeking same is
therefore denied.
B. Motion to Dismiss Cause of Action Seeking a Permanent Injunction
In addition to having opposed the cross-motion seeking the Court to grant Plaintiff a
preliminary injunction, the Defendant has also moved to dismiss the cause of action seeking a
permanent injunction on the same grounds. For the same reasons set forth, supra, this prong of
Defendant’s motion to dismiss is granted, and Plaintiff’s cause of action seeking a permanent
injunction is dismissed.
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CONCLUSION
Based on the foregoing, Plaintiffs’ application for a preliminary injunction (motion
sequence #2) is denied. Defendant’s motion to dismiss the Amended Complaint is granted in
part, and denied in part, as set forth supra.
NOW, therefore, it is hereby
ORDERED, Defendant is directed to Answer the Amended Complaint in accordance
with the foregoing Decision within thirty (30) days from the date hereof; and it is further
ORDERED, that Counsel are directed to appear before the Court for a virtual conference
on February 8, 2023, at 10:00 a.m. for further proceedings on this matter, including a
preliminary conference to address a discovery schedule with respect to the surviving claims. The
Clerk of the Court shall send a link for the conference to all counsel of record.
The foregoing shall constitute the Decision and Order of this Court.
Dated: New City, New York
December 28, 2022
_______________________________
Hon. Thomas P. Zugibe, J.S.C.
To: All counsel of record with NYSCEF
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FILED: ROCKLAND COUNTY CLERK 01/03/2023 02:56 PM INDEX NO. 031650/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/28/2022 To commence the 30 day statutory time period for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND -------------------------------------------------------------------------X MELANGE REGISTERED NURSE AND NURSE PRACTITIONER IN FAMILY HEALTH, Plaintiff, DECISION AND ORDER Index No.: 031650/2022 -against- Mot. Seq. Nos.: 1 & 2 MARGARITA SHUB, Defendant. --------------------------------------------------------------------------X ZUGIBE, J. In connection with the following: Defendants’ motion to dismiss the amended complaint pursuant to CPLR 3211(a)(7) and (5), and Plaintiff’s cross-motion seeking a preliminary injunction enjoining the Defendant from violating the restrictive covenant between the parties, the Court has read and considered NYSCEF documents 10-19, and 21-28, and hereby renders the following Decision and Order. RELEVANT FACTUAL AND PROCEDURAL BACKGROUND MELANGE REGISTERED NURSE AND NURSE PRACTITIONER IN FAMILY HEALTH (hereinafter “Plaintiff” or “Melange”) filed a Complaint with the Rockland County Clerk (“RCC”) on April 13, 2022 asserting two causes of action as against MARGARITA SHUB (hereinafter “Defendant” or “Shub”). NYSCEF Doc. 1. Specifically, in the original Complaint, Plaintiff requested that the Court order Defendant to account for any funds received for services provided to Plaintiff’s clients and/or for services provided within a 25-mile radius of Melange Spas, in purported accord with the parties’ independent contractor agreement; and sought an injunction enforcing the non-compete clause set forth in the agreement. Id. In lieu of Answering the allegations contained in the Complaint, Defendant moved to dismiss the Complaint pursuant to CPLR 3211(a)(7) and (5). NYSCEF Docs. 3-6. This motion was designated as motion sequence #1. On August 9, 2022, Plaintiff filed an Amended Complaint with the RCC. NYSCEF Doc. 9. In addition, Plaintiff cross-moved for a preliminary injunction against Defendant enforcing the non-compete clause set forth in the parties’ agreement that is the subject of this action. NYSCEF Docs. 10-19. This cross-motion was designated as motion sequence #2. 1 1 of 7 FILED: ROCKLAND COUNTY CLERK 01/03/2023 02:56 PM INDEX NO. 031650/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/28/2022 In light of the Plaintiff’s filing of an Amended Complaint, Defendant stipulated to withdraw motion sequence #1, without prejudice, in order to file a new motion to dismiss the now amended pleading. NYSCEF Doc. 21. The parties then stipulated as to the briefing schedule for Plaintiff’s cross-motion, and Defendant’s motion to dismiss the amended pleading. NYSCEF Doc. 22. The motion to dismiss the amended pleading was not assigned a separate sequence number, but the motion will be addressed in the instant Decision and Order. THE AMENDED COMPLAINT Plaintiff alleges that they operate two medical spas, one in Monroe, New York, and another in Blauvelt, New York. NYSCEF Doc. 9, ¶3. Plaintiff asserts that its principal place of business and primary office is its Blauvelt, New York location. Id. at ¶3. Plaintiff provides a variety of cosmetic and aesthetic services to its clients, such as facials, massages and injectables. Id. at ¶4-5. Plaintiff alleges that Defendant is a registered nurse licensed in both New York and New Jersey. Id. at ¶7. Plaintiff alleges that in or around April of 2018, Defendant approached Melange for training in Botox injections, so that she could work at Melange part-time to provide that service to Melange clients. Id. at ¶8. Thereafter, for a period of about three years commencing in or around April 24, 2018, Defendant operated as an independent contractor or employee of Melange at both of their locations. Id. at ¶9. In this capacity, Defendant came into possession of confidential information of Melange clients. Id. at ¶8. Attached to Plaintiff’s Amended Complaint as Exhibit “A” is the independent contractor agreement allegedly signed by Defendant on or about April 24, 2018. NYSCEF Doc. 9. The agreement itself does not appear to be dated, however, it is asserted in the Amended Complaint that it was signed on or about April 24, 2018. Id. Also attached to the Amended Complaint as Exhibit “B” is the Confidentiality/Security Acknowledgment signed by Defendant on or around April 24, 2018. Id. In addition, there is a Covenant Not to Compete and Confidentiality Agreement (hereinafter referred to as the “non-compete agreement”) attached as Exhibit “C.” Id. This document is signed by Defendant, but not Plaintiff. Id. It is alleged in the Amended Complaint that in or around March of 2021, Defendant advised the primary owner of Plaintiff that she wanted to open her own day spa in White Plains, which is located within 20 miles from Plaintiff’s spa. NYSEF Doc. 9, ¶24. Plaintiff alleges that the owner indicated she would be willing to consider a modification of the parties’ non-compete agreement on the condition that Defendant did not interfere with Plaintiff’s efforts to attract clients in Rockland and Orange Counties, and provided Defendant did not solicit existing Melange clientele. Id. at ¶25. Pursuant to this conversation, Plaintiff apparently drafted a modification to the existing non-compete agreement, however Defendant continued to request additional modifications. Id. at ¶26, 27. It does not appear that the non-compete agreement was ever officially or formally modified by the parties. Plaintiff alleges that on January 27, 2022, it was discovered that Defendant was providing the same services she performed at Melange at another spa known as Image Oasis, which is located in White Plains. NYSCEF Doc. 9, ¶28. As per Image Oasis’ website, Defendant was the only staff member performing these services, and “at least one of the clients that Image Oasis claimed to have served, was a client of Melange…” Id. at ¶29. Plaintiff contends that as a result 2 2 of 7 FILED: ROCKLAND COUNTY CLERK 01/03/2023 02:56 PM INDEX NO. 031650/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/28/2022 of this breach of the non-compete agreement, they terminated Defendant’s independent contractor status and requested that Defendant cease and desist from continuing to violate the terms of the non-compete agreement. Id. at ¶30. As per Plaintiff, the Defendant did not respond to the cease and desist letter, and currently, she continues to violate the non-compete agreement. Id. at ¶31-32. In the Amended Complaint, Plaintiff asserts five causes of action as against Defendant: (i) breach of the covenant not to compete and confidentiality agreement; (ii) breach of the confidentiality and security agreement; (iii) breach of the independent contractor agreement; (iv) a demand for an accounting of all funds Defendant has received as a result of violations of the contracts; and (v) an injunction prohibiting Defendant from continuing to violate the non- compete agreement. NYSCEF Doc. 9. MOTION TO DISMISS THE AMENDED COMPLAINT In deciding a motion to dismiss, the allegations in a complaint must be construed liberally, in the light most favorable to the plaintiff, and said allegations must be accepted as true. Zellner v. Odyl, LLC, 117 A.D.3d 1040, 986 N.Y.S.2d 592 (2d Dept. 2014). If, from the four corners of the pleading, “‘factual allegations are discerned which taken together manifest any cause of action cognizable at law’…” the dismissal motion must fail. Id. at 1040 (internal citation omitted). Whether the complaint will survive a summary judgment motion, or whether plaintiff will ultimately be able to prove its entitlement to relief, is irrelevant in determining a CPLR 3211 dismissal motion. See generally, Id. A. Breach of Contract(s) Defendant argues that the Amended Complaint fails to state a claim for breach of any of the contracts referenced therein. First, Defendant points out that the pleading is inconsistent and therefore unclear in its description of the relationship between the parties. In some instances, it references the existence of an independent contractor relationship, and in other, an employer- employee relationship. Essentially, Defendant contends that the semantics matter, and the nature of the relationship between the parties must be sufficiently alleged to withstand the instant dismissal motion. More specifically, the undated contract attached as Exhibit “A” to the Amended Complaint defines Defendant as an independent contractor. The agreement contains non-compete language. NYSCEF Doc. 9. The Confidentiality/Security Acknowledgment attached as Exhibit “B” apparently signed by Defendant indicates that Defendant is signing as an employee or affiliate of Plaintiff and VENUS AESTHETIC SERVICES, LLC. Id. The Amended Complaint does not specifically define VENUS AESTHETIC SERVICES, LLC. Finally, the non-compete agreement set forth as Exhibit “C” to the Amended Complaint is not signed by Plaintiff at all, and indicates that Defendant is an employee of the Plaintiff. Id. Further, in terms of allegations that any confidentiality agreement was breached, Defendant argues the Amended Complaint is silent with respect to any facts that indicate Defendant had access to any particular confidential medical/health information, nor that she then used confidential information after her relationship with Plaintiff ended. 3 3 of 7 FILED: ROCKLAND COUNTY CLERK 01/03/2023 02:56 PM INDEX NO. 031650/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/28/2022 Defendant further contends that the two year non-compete agreement violates the statute of frauds, insofar as it is not capable of enforcement within one year. Based on this violation, Defendant requests dismissal of the causes of action alleging breach of this agreement pursuant to CPLR § 3211(a)(5). Based on the foregoing, Defendant requests the Court dismiss the breach claims set forth in the Amended Complaint. In opposition, Plaintiff contends that the statute of frauds does not render the non- compete agreement a nullity. Plaintiff relies on case law that set forth when a contract of employment is for a definite term, and following the expiration of that term, the employee continues to render the same services without having expressly entered into a new agreement, it is presumed that the employee is serving under a new contract with the same terms and conditions as the original contract. See, Borne Chemical Co. v. Dictrow, 85 A.D.2d 646, 648, 445 N.Y.S.2d 046, 411 (2d Dept. 1981). Further, Plaintiff responds that the Court must only determine on a pre-discovery motion to dismiss whether a cause of action exists, not whether one has been explicitly stated. The Court notes that the Plaintiff does not, however, provide any facts or other documents in opposition to the motion that clear up the nature of the relationship that existed between the parties at the time the causes of action accrued. The Court acknowledges that this is not a well plead Complaint, even as amended. The Court is unclear in drafting this Decision what type of relationship existed between the parties, and the specific nature of Defendant’s actions that Plaintiff contends violate the purported agreements attached thereto, other than the allegation that within the two year “restricted period” defined in the non-compete agreement, Defendant has been working at a spa or salon within twenty (20) miles of Plaintiff performing same or similar services. However, from the facts alleged, when viewed in a light most favorable to the Plaintiff, and giving them every favorable inference, the allegations are minimally sufficient to establish Defendant may have violated some term or provision of the restrictive covenant contained in either the independent contractor agreement, or the non-compete agreement. Whether the Plaintiff will ultimately succeed on these causes of action is not presently before the Court. Further, the Court declines to dismiss these causes of action based on the statute of frauds argument based on the reasoning set forth in Borne Chem. Co., supra. Therefore, Defendant’s motion to dismiss causes of action one, two and three is denied. B. Accounting Plaintiff alleges that as a result of providing Defendant with confidential information, a fiduciary relationship existed such that entitled Plaintiff to an accounting of all funds Defendant has received as a result of any alleged violations to the agreements referenced in the Amended Complaint. NYSCEF Doc. 9, ¶51. Defendant is correct in pointing out that a conventional business relationship without more is not sufficient to create a fiduciary relationship such that would entitle the Plaintiff to an accounting. See, DiTolla v. Doral Dental IPA of N.Y., LLC, 100 A.D.3d 586, 953 N.Y.S.2d 155 (2d Dept. 2012). However, New York State law does recognize that a fiduciary duty exists between employers and employees that survives the termination of the employment relationship. 4 4 of 7 FILED: ROCKLAND COUNTY CLERK 01/03/2023 02:56 PM INDEX NO. 031650/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/28/2022 See, e.g., Kaufman v. International Bus. Machs. Corp., 97 A.D.2d 925, 927, 470 N.Y.S.2d 720 (3d Dept. 1983) (holding that “[t]he duty of an employee not to use or divulge confidential knowledge acquired during his employment is implicit in the employer-employee relation, is an absolute, and not a relative, duty”). In the instant case, as set forth supra, the Court is not clear the exact relationship between the parties. The Amended Complaint contains facts which establish some relationship existed, but whether it was an employer-employee relationship, or whether Defendant served as an independent contractor, has yet to be ascertained. Therefore, based on the facts as set forth in the pleading, the Court declines to dismiss this cause of action at this stage in the proceedings, before any discovery has taken place. Therefore, Defendant’s motion to dismiss cause of action four is denied. INJUNCTIVE RELIEF A. Preliminary Injunction Plaintiff, by way of cross-motion submitted in response to the filing of the original motion to dismiss, has made a request for a preliminary injunction enjoining the Defendant from continuing to violate the restrictive covenant. See, NYSCEF Doc. 19. Preliminary injunctions are governed by Article 63 of the CPLR. They are intended to prevent or enjoin a party from doing something while an action is pending. It is well established that in order to prevail on a motion for a preliminary injunction, the burden falls on the moving party to establish: (1) a likelihood of success on the merits of the underlying action; (2) imminent irreparable injury in the absence of the injunction; and (3) that a balancing of the equities favors the movant’s position. Golden v. Steam Heat, Inc., 216 A.D.2d 440, 442, 628 N.Y.S.2d 375 (2d Dep’t 1995). A movant must be able to satisfy each of these requirements with “clear and convincing evidence” County of Suffolk v. Givens, 106 A.D.3d 943, 967 N.Y.S.2d 387 (2d Dept. 2013) (internal citations omitted). In opposing the cross- motion for a preliminary injunction, Defendant contends that Plaintiff cannot establish a likelihood of success on the merits, based on the existence of critical facts which are sharply in dispute. See, Shannon Stables Holding Co. v. Bacon, 135 A.D.2d 804, 805, 522 N.Y.S.2d 908 (2d Dept. 1987). Further, Defendant points out that the facts as alleged in the Complaint, even if assumed to be true, do not support the contention that Plaintiff needs protection from unfair competition by reason of Defendant’s use of trade secrets or confidential health information of former clients. This is, as per Defendant, insufficient to meet the “clear and convincing evidence” standard required to support a request for a preliminary injunction. Finally, Defendant argues that Plaintiff has failed to establish that the services she rendered were of such a special, unique and extraordinary nature that the enforcement of a restrictive covenant is necessary to protect irreparable damages to Plaintiff’s business. See, TMP Worldwide Inc. v. Franzino, 269 A.D.2d 332, 703 N.Y.S.2d 183 (1st Dept. 2000) (a request for a preliminary injunction is properly denied based solely upon conclusory assertions that the enforcement of a non-competition agreement are reasonable and necessary, absent an actual showing by means of 5 5 of 7 FILED: ROCKLAND COUNTY CLERK 01/03/2023 02:56 PM INDEX NO. 031650/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/28/2022 “competent evidence” that an individual defendant had access to and misappropriated customer lists, trade secrets, business plans or other confidential information, or that the defendant’s services were of such a unique and extraordinary nature). Defendant also points out that the damages sought by Plaintiff can be classified as calculable monetary harm. Plaintiff cannot, therefore, establish irreparable harm. See, 306 Rutledge, LLC v. City of New York, 90 A.D.3 1026, 1028, 935 N.Y.S.2d 619 (2d Dept. 2011) (noting that when plaintiffs can be compensated by a monetary award, an injunction is not appropriately granted, as no irreparable harm can be sustained in that situation). Based on the foregoing, in balancing the equities, the Defendant urges the Court to deny the request for a preliminary injunction. An injunction is a drastic remedy and must be narrowly tailored to “eliminate the exact alleged private wrong.” Children’s Village v. Greenburgh Eleven Teachers’ Union Fed’n of Teachers, Local 1532, 258 A.D.2d 610, 612, 685 N.Y.S.2d 754 (2d Dep’t 1999). The broad scope of this preliminary injunction would essentially prevent Defendant from engaging in any type of work or business to which the restrictive covenant referenced above could hypothetically apply. An injunction in this instance would essentially sanction the loss of Defendant’s livelihood, and would prevent her from pursuing a similar vocation after loss of her current employment. To grant an injunction of this nature would be violative of public policy, even if the restrictive covenant is reasonable in both scope and duration. See, Shannon Stables, supra, at 805-806. Further, although some of the causes of action set forth in the Amended Complaint have survived a dismissal motion at the earliest stage of this litigation, there are serious and material facts in dispute, and, further, Plaintiff cannot establish irreparable injury in the absence of the preliminary injunction. Looking at all these factors collectively, this Court determines that Plaintiff has not established its entitlement to a preliminary injunction. Plaintiff’s cross-motion seeking same is therefore denied. B. Motion to Dismiss Cause of Action Seeking a Permanent Injunction In addition to having opposed the cross-motion seeking the Court to grant Plaintiff a preliminary injunction, the Defendant has also moved to dismiss the cause of action seeking a permanent injunction on the same grounds. For the same reasons set forth, supra, this prong of Defendant’s motion to dismiss is granted, and Plaintiff’s cause of action seeking a permanent injunction is dismissed. 6 6 of 7 FILED: ROCKLAND COUNTY CLERK 01/03/2023 02:56 PM INDEX NO. 031650/2022 NYSCEF DOC. NO. 30 RECEIVED NYSCEF: 12/28/2022 CONCLUSION Based on the foregoing, Plaintiffs’ application for a preliminary injunction (motion sequence #2) is denied. Defendant’s motion to dismiss the Amended Complaint is granted in part, and denied in part, as set forth supra. NOW, therefore, it is hereby ORDERED, Defendant is directed to Answer the Amended Complaint in accordance with the foregoing Decision within thirty (30) days from the date hereof; and it is further ORDERED, that Counsel are directed to appear before the Court for a virtual conference on February 8, 2023, at 10:00 a.m. for further proceedings on this matter, including a preliminary conference to address a discovery schedule with respect to the surviving claims. The Clerk of the Court shall send a link for the conference to all counsel of record. The foregoing shall constitute the Decision and Order of this Court. Dated: New City, New York December 28, 2022 _______________________________ Hon. Thomas P. Zugibe, J.S.C. To: All counsel of record with NYSCEF 7 7 of 7