Preview
FILED: WESTCHESTER COUNTY CLERK 05/15/2024 02:51 PM INDEX NO. 65180/2023
NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 05/15/2024
To commence the statutory time
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 WESTCHESTER – I.A.S. PART
PRESENT: HON. THOMAS QUIÑONES, J.S.C.
-----------------------------------------------------------------------x
RUSSIAN SCHOOL OF MATHEMATICS, INC., DECISION AND ORDER
Plaintiff, Index No. 65180/2023
Motion Sequence Nos. 1, 2, 4
-against-
IRENE SINYAVIN and LOGICUS, LLC,
Defendants.
------------------------------------------------------------------------x
The following papers were filed to the New York State Court Electronic Filing System
(“NYSCEF”) and read on the motions by plaintiff Russian School of Mathematics, Inc.
(“Plaintiff”) for an Order: (1) pursuant to CPLR 6301 and 7502(c) granting a preliminary
injunction against defendant Irene Sinyavin (“Sinyavin”) (Seq. No. 1); and (2) pursuant to
Judiciary Law § 753 and CPLR 5104 holding in contempt Sinyavin and defendant Logicus, LLC
(“Logicus”) (together with Sinyavin, “Defendants”) (Seq. No. 2); and for such other and further
relief as this Court deems just and proper:
NYSCEF Document Nos. 1-8; 10-17; 19-20; 33-56; 73-81; 82-86;1 and 87-92.
Factual and Procedural Background
Plaintiff, which is an after-school math learning center located in Scarsdale, commenced
this action on August 14, 2023 by way of its filing of the Summons and Complaint (NYSCEF Doc.
No. 1). In sum and substance, the Complaint alleges that pursuant to an Employment Agreement
dated March 12, 2021 (the “Employment Agreement”), Plaintiff hired Sinyavin to serve as its
Principal (id. at ¶¶ 1-38). It further alleges that Plaintiff terminated Sinyavin’s employment on
January 11, 2023, and that four days later, Sinyavin executed a Separation Agreement dated
January 17, 2023 (the “Separation Agreement”) (id.). The Complaint alleges that Sinyavin
1
The Court on Motion Sequence No. 2 has considered Plaintiff’s supporting memorandum of law (NYSCEF Doc. No.
81), thus mooting Plaintiff’s separate motion (Seq. No. 4) for an Order pursuant to CPLR 2004 extending Plaintiff’s
time to file its memorandum of law in support of Motion Seq. No. 2 (see NYSCEF Doc. Nos. 82-86). As such, Motion
Sequence No. 4 is denied as moot.
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subsequently breached the Employment Agreement’s “Non-Solicitation” and “Non-Competition”
clauses by: (1) founding Logicus as a direct competitor of Plaintiff in the math tutoring business;
(2) soliciting Plaintiff’s clients to enroll with Logicus; (3) making negative and/or disparaging
statements and communications regarding Plaintiff; and (4) exploiting Plaintiff’s confidential
business information to the competitive advantage of Logicus (id.). Based upon the foregoing
general allegations, Plaintiff in the Complaint asserted: (1) first through fourth causes of action for
breach of contract based upon the Employment Agreement against Sinyavin; (2) a fifth cause of
action for breach of contract arising from the Separation Agreement against Sinyavin; (3) a sixth
cause of action for tortious interference with contract against Logicus; (4) a seventh cause of action
for misappropriation of trade secrets against both Defendants; and (5) an eighth cause of action for
unfair competition against both Defendants (id. at ¶¶ 39-87).
Simultaneously with the filing of its Summons and Complaint, Plaintiff on August 14,
2023 moved (Seq. No. 1) pursuant to CPLR 6301 and 7502(c) for a temporary restraining order
and a preliminary injunction against Sinyavin (see NYSCEF Doc. Nos. 2-8), and Sinyavin
promptly opposed the application for a temporary restraining order (see NYSCEF Doc. Nos. 10-
17). On August 25, 2023, the Court issued an Order to Show Cause with a temporary restraining
order which provided that, pending a determination of the underlying motion for preliminary
injunctive relief, Sinyavin was temporarily restrained from: (1) competing with Plaintiff through
continued active employment by and/or the provision of services in support of Logicus or any other
competitive entity; (2) directly or indirectly soliciting Plaintiff’s clients; (3) directly or indirectly
soliciting Plaintiff’s employees; (4) disclosing or using any of Plaintiff’s confidential information,
including client information; and (5) making any negative or disparaging communications
regarding Plaintiff to its clients or prospective clients (see NYSCEF Doc. No. 19). On August 29,
2023, Plaintiff filed the $25,000 undertaking required by the Court’s August 25, 2023 Order to
Show Cause with temporary restraining order (see NYSCEF Doc. No. 20).
With the temporary restraining order in place, and Plaintiff’s motion for a preliminary
injunction not yet having been fully briefed, Defendants on September 14, 2023 filed a Notice of
Removal by which they removed this action to the United States District Court for the Southern
District of New York (see NYSCEF Doc. No. 26). However, by Order dated October 18, 2023, the
District Court (Halper, J.) remanded the case back to this Court for want of federal subject matter
jurisdiction (see NYSCEF Doc. No. 66).
With the action having been remanded back to this Court, Plaintiff on November 8, 2023
moved (Seq. No. 2) pursuant to Judiciary Law § 753 and CPLR 5104 for an Order holding
Defendants in contempt for allegedly violating the terms of the Court’s August 25, 2023 temporary
restraining order (see NYSCEF Doc. Nos. 33-56). Defendants thereafter jointly opposed both
Plaintiff’s motion for a preliminary injunction and Plaintiff’s motion for contempt (see NYSCEF
Doc. Nos. 73-80), and Plaintiff furnished a reply in further support of both motions (see NYSCEF
Doc. Nos. 87-92). As such, the Court addresses herein Plaintiff’s two fully submitted motions, i.e.,
its motion for a preliminary injunction (Seq. No. 1) and its motion for contempt (Seq. No. 2).
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Furthermore, as noted above, the Court also herein denies as moot Plaintiff’s related motion (Seq.
No. 4) to extend Plaintiff’s time to file its memorandum of law in support of Motion Seq. No. 2
(see NYSCEF Doc. Nos. 82-86), as the Court has considered such memorandum of law (NYSCEF
Doc. No. 81), rendering Motion Seq. No. 4 moot.2
Plaintiff’s Contentions in Support of Its Motion for a Preliminary Injunction
In support of its motion for preliminary injunctive relief, Plaintiff furnishes its Complaint as
verified by Plaintiff’s CEO, Ilya Rifkin (“Rifkin”), an affirmation from its counsel annexing thereto
copies of documentary evidence including, inter alia, the Employment Agreement and the
Separation Agreement, and a memorandum of law (see NYSCEF Doc Nos. 1-8).
Plaintiff contends that its motion for an Order pursuant to CPLR 6301 and 7502(c) granting
Plaintiff a preliminary injunction against Sinyavin should be granted in its entirety. Specifically,
Plaintiff asserts that it has established that it is likely to succeed on the merits of, inter alia, its
claims for breach of contract arising from the Employment Agreement as against Sinyavin, which
allege that Sinyavin materially breached the “Non-Solicitation” and “Non-Competition” provisions
of Articles 9(a) and 9(c) of the Employment Agreement by soliciting Plaintiff’s clients and by
providing services for a competitor, namely Logicus, during the two-year prohibited period
following Plaintiff’s January 17, 2023 termination of Sinyavin’s employment. Plaintiff argues that
the documentary evidence furnished in support of its motion, and the allegations in its Complaint
as verified by Rifkin, collectively demonstrate that Sinyavin founded Logicus to compete directly
with Plaintiff in the greater Scarsdale area, and that Sinyavin serves as Logicus’ Principal, which is
the same position that Sinyavin held for Plaintiff, and further reflect that Sinyavin has materially
breached the Employment Agreement by soliciting Plaintiff’s clients for enrollment at Logicus.
Plaintiff also contends that it will suffer irreparable injury absent a preliminary injunction,
as the loss of client relationships and customer goodwill that is resulting from Sinyavin’s material
breach of the Employment Agreement’s “Non-Solicitation” and “Non-Competition” provisions is
irreparably injuring Plaintiff’s business and reputation. Plaintiff asserts that the result of
Sinyavin’s conduct, namely, the loss of confidential information, the loss of clients and employees,
and the loss of reputation via disparagement, cannot be adequately remedied by monetary relief,
thus requiring that Plaintiff obtain preliminary injunctive relief as against Sinyavin.
Plaintiff further argues that the equities balance in its favor, as it faces catastrophic damage
to its business in the absence of an injunction, while Sinyavin will suffer only the inconvenience
directly caused by her own breaches of the Employment Agreement, such that she will have to
temporarily close, divest or relocate Logicus, which entity Sinyavin created in material breach of
the two-year non-solicitation and non-competition clauses of the Employment Agreement.
2
Motion Seq. No. 3 was Defendants’ motion to stay this action so that they could obtain new counsel, and following
Defendants’ retention of such new counsel, the motion was denied as moot by Decision and Order dated January 9,
2024 (see NYSCEF Doc. No. 71).
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Accordingly, Plaintiff contends that the Court should grant in its entirety Plaintiff’s motion for a
preliminary injunction as against Sinyavin pursuant to CPLR 6301 and 7502(c).
Defendants’ Contentions in Opposition to Plaintiff’s Motion for a Preliminary Injunction
In opposition to Plaintiff’s motion for preliminary injunctive relief, Defendants furnish
affidavits from Sinyavin, affirmations from counsel annexing documentary evidence thereto, and
memoranda of law (see NYSCEF Doc. Nos. 10-14; 73-80).
Defendants contend that Plaintiff’s motion for a preliminary injunction as against Sinyavin
should be denied in its entirety. Specifically, Defendants assert that Plaintiff has not established a
likelihood of success on the merits of its claims as against Sinyavin for breach of contract arising
from the Employment Agreement. They argue that the “Non-Competition” clause set forth in
Article 9(c) of the Employment Agreement is unenforceable because Plaintiff subsequently
terminated Sinyavin’s employment without cause. Defendants also contend that Article 9(c)
should not be enforced by this Court because it is unreasonable in terms of scope, time, and
geographic area, it is unnecessary to protect Plaintiff’s interests, it is harmful to the public, and it is
unduly burdensome to Sinyavin. Defendants further assert that Plaintiff is not likely to succeed on
the merits of its breach of contract claims arising from the Employment Agreement because the
“Non-Solicitation” clause of Article 9(a) is unenforceable where, as here, Plaintiff terminated
Sinyavin’s position as President without cause, and further because Sinyavin did not solicit any
active employees of Plaintiff and nor did she disparage Plaintiff or disclose its confidential
information.
Defendants also argue that Plaintiff’s motion should be denied because it has failed to
demonstrate that Plaintiff will suffer irreparable harm in the absence of preliminary injunctive
relief as against Sinyavin. In particular, Defendants contend that Plaintiff’s submissions do not
demonstrate by clear and convincing evidence that Plaintiff has lost multiple clients and instead
identify only one specific client that left Plaintiff’s school and enrolled in Logicus; and that in any
event, even Plaintiff’s theoretical loss of numerous clients can be compensated by monetary
damages. Defendants also assert that Plaintiff has not demonstrated any loss of goodwill due to
Sinyavin’s creation of Logicus, and that Plaintiff’s claims of lost confidential information, lost
clients and reputational damage are not substantiated by Plaintiff’s submissions.
Defendants further argue that Plaintiff’s motion should be denied because the balancing of
the equities favors Sinyavin and not Plaintiff. Specifically, Defendants contend that the fact that
Plaintiff terminated Sinyavin’s employment without cause and now seeks to restrict her from
working in her chosen profession strongly tips the equities in favor of Sinyavin. Defendants also
assert that the equities favor Sinyavin because the “Non-Solicitation” and “Non-Competition”
provisions of Articles 9(a) and 9(c) of the Employment Agreement are far broader than necessary
to protect Plaintiff’s legitimate business interests, and thus should be deemed unenforceable.
Defendants argue that if these clauses are enforced they would effectively bar Sinyavin from
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employment in her field, and that they are designed to eradicate competition entirely and to
frighten other of Plaintiff’s employees who may consider tutoring math elsewhere. Accordingly,
Defendants conclude that the Court should deny in its entirety Plaintiff’s motion for a preliminary
injunction as against Sinyavin pursuant to CPLR 6301 and 7502(c).3
Plaintiff’s Contentions in Support of Its Motion for Contempt
In support of its motion for contempt, Plaintiff submits an affirmation from its counsel
annexing documentary evidence thereto, as well as a memorandum of law (see NYSCEF Doc. Nos.
34-56; 81).
Plaintiff contends that it has established by clear and convincing evidence entitlement to an
Order pursuant to Judiciary Law § 753 and CPLR 5104 holding Defendants in contempt. In
particular, Plaintiff asserts that the temporary restraining order issued by this Court on August 25,
2023 is a lawful and binding Order that unequivocally prevents Defendants from competing with
Plaintiff’s mathematic tutoring center in the greater Scarsdale area. Plaintiff argues that
Defendants were aware of the temporary restraining order, but blatantly and willfully disobeyed it
by: (1) posting on LinkedIn on August 27, 2023 information regarding a job for a mathematics
teacher at Logicus; (2) Sinyavin communicating on September 7, 2023 with a parent who had
inquired about enrollment in Logicus, and inviting the parent to bring the child in for an assessment
on September 8, 2023; and (3) Defendants continuing to operate Logicus in September 2023 as
evidenced by Plaintiff’s private investigator noting that several cars seen dropping off children at
Logicus are registered to parents of Plaintiff’s former students. Plaintiff further contends that
Defendants removed this action to federal court on September 14, 2023 in “bad faith” so as to
avoid the constraints of the temporary restraining order that had been put in place by this Court on
August 25, 2023.
Plaintiff also asserts that it has been prejudiced by Defendants’ disobedience of the
temporary restraining order. Specifically, it contends that the temporary restraining order was
issued so as to permit Plaintiff to operate its mathematics tutoring programs free of unfair
competition from Defendants in violation of Sinyavin’s contractual obligations pursuant to the
Employment Agreement. Plaintiff argues that because Sinyavin continues to operate Logicus as if
this Court’s temporary restraining order did not exist, Plaintiff has been forced into a position in
which it is not only competing with Logicus for teachers and students, but Plaintiff has also lost
several students due to Sinyavin’s “poaching” thereof. As such, Plaintiff asserts that Defendants’
willful disobedience of the temporary restraining order has prejudiced Plaintiff’s rights thereunder.
Accordingly, Plaintiff concludes that this Court should issue an Order pursuant to Judiciary Law
3
Neither Plaintiff’s moving submissions nor Defendants’ submissions in opposition directly address the issue of the
requirement of an undertaking for preliminary injunctive relief (see Karr Graphics Corp. v Spar Knitwear Corp., 192
AD3d 673, 676 [2d Dept 2021] (stating that “[p]ursuant to CPLR 6312[b], the beneficiary of a preliminary injunction
must post an undertaking, the purpose of which is to compensate the enjoined party for damages incurred by reason of
the injunction in the event it is determined that the beneficiary was not entitled to the injunction”)).
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§ 753 and CPLR 5104 holding Defendants in contempt.
Defendants’ Contentions in Opposition to Plaintiff’s Motion for Contempt
In opposition to Plaintiff’s motion for contempt, Defendants furnish a memorandum of law
(see NYSCEF Doc. No. 74).
Defendants contend that because Plaintiff has failed to demonstrate its entitlement to an
Order of contempt by clear and convincing evidence, Plaintiff’s motion should be denied in its
entirety. Specifically, Defendants argue that Plaintiff’s submissions fall well short of the high
burden of proof that applies to a motion for contempt, as Plaintiff has not shown by clear and
convincing evidence both that Sinyavin violated the terms of the temporary restraining order and
that Plaintiff suffered prejudice as a direct result thereof, which requires the denial of Plaintiff’s
contempt motion.
Defendants assert that Plaintiff has not established by clear and convincing evidence that
Sinyavin continues to compete with Plaintiff’s mathematics tutoring program in violation of the
temporary restraining order issued by this Court on August 25, 2023. Defendants contend that
Plaintiff has improperly attempted to broaden the plain terms of the temporary restraining order by
misleadingly framing it as having wholly prohibited Sinyavin from continuing to operate Logicus,
when in fact the temporary restraining order is more limited and only bars Sinyavin from
“competing with [Plaintiff] through active employment by and/or [through] the provision of
services in support of Logicus, LLC or any other competitive entity.” Defendants argue that the
job posting by Logicus cited by Plaintiff is not prohibited by the temporary restraining order, which
only applies to Sinyavin, and that in any event this job posting was placed on LinkedIn prior to the
temporary restraining order having been served upon Sinyavin. Defendants also assert that the
September 7, 2023 email communication cited by Plaintiff as purportedly reflecting that Sinyavin
was communicating with a parent who had inquired about enrollment in Logicus, was in fact an
email sent by Plaintiff’s private investigator using an alias in an effort to entrap Sinyavin into
violating the temporary restraining order. Defendants further contend that Plaintiff’s private
investigator’s notes regarding cars stopping in front of Logicus having been registered to parents of
Plaintiff’s former students intentionally omit the key fact that such investigator failed to
specifically observe Sinyavin at Logicus’ offices, and thus his submission falls far short of
constituting clear and convincing evidence of Sinyavin’s alleged violation of the temporary
restraining order.
Defendants also argue that Plaintiff has not established by clear and convincing evidence
that it has been prejudiced by Sinyavin’s alleged violation of the temporary restraining order. In
particular, Defendants assert that Plaintiff has not explained how it has suffered any prejudice
whatsoever, and has not furnished any evidence – let alone clear and convincing evidence – that
Plaintiff lost a single student to Logicus or was otherwise adversely affected by Defendants after
the temporary restraining order was issued and served upon Sinyavin. Defendants contend that
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Plaintiff’s use of a private investigator to ensnare Sinyavin in a violation of the terms of the
temporary restraining order is wholly insufficient for purposes of establishing prejudice, as the
private investigator was acting under an alias and was not actually the parent of a child enrolled at
Plaintiff’s mathematics school that left such enrollment so as to join Logicus. As such, Defendants
argue that Plaintiff has not met its burden of establishing by clear and convincing evidence that it
has suffered any prejudice whatsoever due to Sinyavin’s purported violation of the temporary
restraining order. Defendants accordingly conclude that this Court should deny in its entirety
Plaintiff’s motion for an Order pursuant to Judiciary Law § 753 and CPLR 5104 holding
Defendants in contempt.
Plaintiff’s Motion for a Preliminary Injunction
It is well-settled that “[t]o establish the right to a preliminary injunction, a movant must
demonstrate (1) the likelihood of success on the merits, (2) irreparable injury absent a preliminary
injunction, and (3) that the equities balance in the movant’s favor” (Benaim v S2 Corona, LLC, 214
AD3d 760, 761 [2d Dept 2023], citing CPLR § 6301 and Cong. Machon Chana v Machon Chana
Women’s Inst., Inc., 162 AD3d 635, 637 [2d Dept 2018]). “The decision whether to grant or deny
a preliminary injunction rests in the sound discretion of the court hearing the motion” (Benaim, 214
AD3d at 760). However, “[a] preliminary injunction is a drastic remedy and the [movant], to be
entitled to injunctive relief, must establish a clear right under the law and the undisputed facts”
(Putter v Singer, 73 AD3d 1147, 1149 [2d Dept 2010] (internal quotations omitted); accord
Mobstub, Inc. v www.staytrendy.com, 153 AD3d 809, 810 [2d Dept 2017] (stating that “[a] party
seeking the drastic remedy of a preliminary injunction has the burden of demonstrating, by clear
and convincing evidence, (1) a likelihood of ultimate success on the merits, (2) the prospect of
irreparable injury if the provisional relief is withheld, and (3) a balancing of the equities in the
movant’s favor”)).
Having reviewed the parties’ submissions, the Court determines that Plaintiff has
established a likelihood of success on the merits of its first through fourth causes of action for
breach of contract4 arising from the Employment Agreement as against Sinyavin. Article 9 of the
Employment Agreement is entitled “Non-Competition and Non-Solicitation,” and in relevant part
includes Article 9(a) regarding “Non-Solicitation-Clients” and Article 9(c) concerning “Non-
Competition” (see NYSCEF Doc. No. 4). As set forth below, these provisions respectively and
unambiguously set forth a two-year non-solicit and non-compete period commencing from
Plaintiff’s termination of Sinyavin’s employment, which termination occurred on January 17, 2023
by way of the Separation Agreement (see NYSCEF Doc. No. 5), and which two-year period
therefore ends on January 17, 2025 (see NYSCEF Doc. No. 4). These two contractual provisions
in the Employment Agreement state in relevant part as follows:
4
“The essential elements of a breach of contract cause of action are the existence of a contract, the plaintiff’s
performance under the contract, the defendant’s breach of that contract, and resulting damages” (Blank v Petrosyants,
203 AD3d 685, 688 [2d Dept 2022], quoting Liberty Equity Restoration Corp. v Yun, 160 AD3d 623, 626 [2d Dept
2018]).
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(a) Non-Solicitation - Clients. During Employee’s employment
with RSM and for a period of two years after the end of his/her
employment for any reason (the “Non-Solicit Term”), she will not,
on behalf of her/himself or any other individual or entity, directly or
indirectly solicit or accept any business from, or perform any services
of the type performed by the Company for any Client of the
Company. The term “Client” shall mean any individual, student,
parent or entity to which the Company provided, or with which the
Company was communicating in an effort to provide services within
one year prior to his/her termination date. Employee also agrees not
to attempt to divert, entice or otherwise induce any Client to sever or
reduce its business relationship with the Company. Accordingly,
Employee agrees that during the Non-Solicit Term she will not refer
a Client to a Competitive Business, as defined below, or assist any
Competitive Business to solicit work of the type performed by RSM
from any Client . . .
(c) Non-Competition. To protect the Company’s Resources and
Confidential Information, at any time during his/her employment and
for a period of two years after the end of Employee’s employment
(“Non-Compete Term”) the Employee:
She will not become employed by, advise, consult with, provide
services to, or act as an agent for, any Competitive Business. A
“Competitive Business” is any entity which is, or plans to become,
engaged in any activity which is competitive with the Company’s
business, including but not limited to, tutoring mathematics or
providing services to any program offering mathematics instruction.
Nothing in this Agreement will prohibit Employee from continuing
the activities listed in Appendix B (Approved Activities) or from
working as a mathematics teacher in a public or private full-day
school setting after this Agreement is terminated.
In addition, Employee will not acquire an ownership interest in any
Competitive Business during the Non-Compete Term. However,
Employee may acquire stock in a Competitive Business that is
publicly traded, provided any stock constitutes less than three percent
(3%) of the outstanding securities of the Competitive Business.
Employee may also own mutual funds which hold stock in a
Competitive Business, provided Employee cannot control or direct
the purchase of stock by the mutual fund.
(d) Geographic Scope. The Non-Solicitation and Non-Competition
restrictions in this section will apply to all Competitive Businesses
within a thirty (30) miles radius of any of RSM’s branches or
affiliate[s], wherever located (see NYSCEF Doc. No. 4) (emphases
added).
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Based upon the foregoing language, Article 9 of the Employment Agreement
unambiguously states that Sinyavin agreed that during the two-year non-solicit and non-compete
period from January 17, 2023 through January 17, 2025, she would not “become employed by,
advise, consult with, provide services to, or act as an agent for, any Competitive Business,” and
“will not acquire an ownership interest in any Competitive Business during the Non-Compete
Term” (see NYSCEF Doc. No. 4 at Arts. 9[a] and [c]). Moreover, Article 9(d) of the Employment
Agreement makes clear that the prohibition on Sinyavin working for and/or owning a “Competitive
Business” applies to such businesses located within a 30 mile radius of Plaintiff’s math tutoring
school, which is located in Scarsdale (id. at Art. 9[d]).5 As such, the Employment Agreement’s
plain terms collectively make apparent that this contract would be materially breached if Sinyavin
were to work for or own a competitive business within 30 miles of Plaintiff’s Scarsdale location
during the two-year non-solicit and non-compete period ending on January 17, 2025. And this is
precisely the allegation underlying Plaintiff’s first four causes of action for breach of contract, and
in particular the first and second causes of action, namely, that Sinyavin materially breached
Article 9 of the Employment Agreement by, inter alia, owning and operating Logicus as a
competitive business offering math tutoring services in the greater Scarsdale area (see NYSCEF
Doc. No. 1 at ¶¶ 39-69).
In the Court’s review of the above-referenced unambiguous terms of Article 9 of the
Employment Agreement, as well as Plaintiff’s submissions in support of its motion for preliminary
injunctive relief, the Court determines that Plaintiff has established a likelihood of success on the
merits of its breach of contract claims against Sinyavin. The Court agrees with Plaintiff that it has
established the existence of valid contractual documents, as both the Employment Agreement and
the Separation Agreement (which includes Sinyavin’s January 17, 2023 termination date) are
executed by Sinyavin and constitute valid contracts between Sinyavin and Plaintiff (see NYSCEF
Doc. Nos. 4-5). The record before the Court on this motion also reflects that Plaintiff performed its
contractual obligations under both agreements, as Plaintiff employed Sinyavin as its Principal in
accordance with the Employment Agreement’s terms, and Plaintiff similarly acted in compliance
with the Separation Agreement in furnishing to Sinyavin the agreed-upon severance payment equal
to three months of Sinyavin’s salary. Furthermore, through the allegations in the Complaint as
verified by Rifkin, and by way of the documentary evidence furnished on this motion, Plaintiff has
established a likelihood of success on the merits of its claim that Sinyavin materially breached
Article 9 of the Employment Agreement by founding Logicus in the greater Scarsdale area, by
providing mathematics tutoring services by way of that competitive business entity, and by
soliciting current and/or former students of Plaintiff’s mathematics school to enroll at Logicus,
which has caused Plaintiff to suffer related damages (see NYSCEF Doc. Nos. 1, 4-7).
Based upon the foregoing, and without opining as to whether Plaintiff may ultimately
5
Although the 30 mile radius in Article 9(d) is broadly measured from the location of “any of [Plaintiff]’s branches or
affiliate[s],” Plaintiff states that it “only seeks to enforce the provision with respect to its Scarsdale location where
Sinyavin was employed as the principal” (see NYSCEF Doc. No. 8 at fn. 2).
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prevail on the merits of its breach of contract claims, the Court finds that for purposes of this
preliminary injunction motion, Plaintiff has established a likelihood of success on the merits (see
NYSCEF Doc. Nos. 1, 4-7; see also Camp Bearberry, LLC v Khanna, 212 AD3d 897, 899 [3d
Dept 2023] (stating that “on the record before us, we are satisfied that plaintiff established a
likelihood of success on the merits” and affirming the Supreme Court’s granting of plaintiff’s
motion for preliminary injunctive relief); Newmark Partners, L.P. v Hunt, 200 AD3d 557, 557 [1st
Dept 2021] (affirming the Supreme Court’s issuance of a preliminary injunction enjoining
defendants from competing with plaintiffs for one year and stating that “[p]laintiffs demonstrated a
likelihood of success on the merits of their action to enforce a noncompetition provision”);
McMahon v Cobblestone Lofts Condominium, 161 AD3d 536, 537 [1st Dept 2018] (holding that
the Supreme Court “properly granted plaintiffs’ subsequent motion for a preliminary injunction”
where “Plaintiff demonstrated a likelihood of success on the merits”); Matter of 1650 Realty
Assoc., LLC v Golden Touch Mgt., Inc., 101 AD3d 1016, 1018 [2d Dept 2012] (finding that “the
petitioners demonstrated a likelihood of ultimate success on their claims” and that “[a]ccordingly,
the Supreme Court providently exercised its discretion in granting the petitioners’ motion for a
preliminary injunction”); Thilberg v Mohr, 74 AD3d 1055, 1055 [2d Dept 2010] (holding that the
“Supreme Court properly granted the motion for a preliminary injunction” where “[t]he plaintiffs
demonstrated a likelihood of success on the merits”); Destiny USA Holdings, LLC v Citigroup
Global Mkts. Realty Corp., 69 AD3d 212, 219-220 [4th Dept 2009] (affirming the Supreme Court’s
granting of preliminary injunctive relief in connection with a finding that plaintiff was likely to
succeed on the merits of its breach of contract claim)).
The Court does not credit Defendants’ argument that Plaintiff is unlikely to succeed on the
merits on the ground that this Court should not enforce Article 9(c) of the Employment Agreement
because, inter alia, it is unreasonable in terms of scope, time, and geographic area and is therefore
unduly burdensome to Sinyavin. Rather, the Court finds that Article 9(c) and the related
geographic limitation in Article 9(d) is reasonably limited in only applying to competitive
businesses offering “mathematics instruction” and “tutoring” within a 30 mile radius of Plaintiff’s
Scarsdale-based school, and is enforceable as it is reasonably limited to a two-year period
following the termination of Sinyavin’s employment with Plaintiff (see NYSCEF Doc. No. 4 at
Arts. 9[c] and [d]; see also Gelder Medical Group v Webber, 41 NY2d 680, 685 [1977] (enforcing
a non-competition provision and holding that “it was not unreasonable to extend the covenant to a
radius of 30 miles of the village, and it was certainly quite reasonable to limit the noncompetition
term to five years”); Delta Enter. Corp. v Cohen, 93 AD3d 411, 412 [1st Dept 2012] (rejecting
defendant’s argument that a restrictive covenant was unenforceable and stating that “extending the
duration of the preliminary injunction until two years after entry of the temporary restraining order,
or until resolution at trial, whichever is earlier, appears to be the only means by which to ensure the
preservation of the status quo pending a final resolution of this action”)).
The Court also does not agree with Defendants’ related assertion that the “Non-
Competition” clause set forth in Article 9(c) of the Employment Agreement is unenforceable
because Plaintiff subsequently terminated Sinyavin’s employment without cause. As correctly
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noted by Plaintiff in its reply papers (see NYSCEF Doc. Nos. 90-91), the Separation Agreement
makes clear that the parties agreed that if Sinyavin complied with the terms thereof, Plaintiff would
forgo asserting that Sinyavin’s termination was for “Cause” under the terms of the Employment
Agreement, as such designation would have numerous negative consequences for Sinyavin.
Article 2 of the Separation Agreement concerns “Payments” and states as follows:
Provided Employee executes, complies with and does not revoke this
Agreement, the Company will pay Employee her base salary, minus
applicable payroll deductions, for three months (the “Severance
Payments”). The Severance Payments will be made on the
Company’s normal payroll schedule and will begin with the next
scheduled salary payment that is at least eight days after Employee
has executed this Agreement.
Provided Employee executes, complies with and does not revoke this
Agreement, the Company will also pay Employee pro-rated Branch
Profit Sharing Credits of $1,567 from her branch and forgo asserting
that the termination was for “Cause” under her employment
agreement (see NYSCEF Doc. No. 5 at Art. 2).
Accordingly, given that the record on this motion reflects that Plaintiff terminated Sinyavin for
cause but the parties agreed to deem such termination to be without cause in exchange for, inter
alia, Sinyavin’s compliance with the Separation Agreement and Plaintiff’s payment to Sinyavin of
three months of severance pay and certain profit sharing credits – in addition to allowing Sinyavin
to apply for government unemployment benefits – Defendants cannot credibly seek to use this
negotiated contractual concession in the Separation Agreement to render unenforceable Article 9(c)
of the Employment Agreement (see NYSCEF Doc. Nos. 1, 4-7; 90).
Therefore, for the reasons stated above, plaintiff has established a likelihood of success on
the merits of its breach of contract claims as against Sinyavin, satisfying the first of three requisite
elements for preliminary injunctive relief (see Benaim, supra, 214 AD3d at 761; Mobstub, Inc., 153
AD3d at 810).
Plaintiff has also established, by way of the Complaint as verified by Rifkin and by the
documentary evidence furnished in support of its motion, that it will suffer irreparable injury absent
preliminary injunctive relief (see NYSCEF Doc. Nos. 1, 4-7). The Court agrees with Plaintiff that
the loss of customer relationships and goodwill and the damage to customer relationships that is
resulting from Sinyavin’s alleged material breaches of the Employment Agreement’s “Non-
Solicitation” and “Non-Competition” provisions is irreparably injuring Plaintiff’s business and
reputation, and that such losses cannot be readily quantified or remedied by monetary damages
alone, as urged by Defendants (see TDA, LLC v Lacey, 202 AD3d 1474, 1475 [4th Dept 2022]
(affirming the Supreme Court’s issuance of preliminary injunctive relief and stating that “[w]e note
in particular that plaintiff established irreparable injury in the form of loss of goodwill and damage
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to customer relationships”) (internal quotation omitted); Marcone APW, LLC v Servall Co., 85
AD3d 1693, 1697 [4th Dept 2011] (holding that “[t]he loss of goodwill and damage to customer
relationships, unlike the loss of specific sales, is not easily quantified or remedied by monetary
damages”); Gundermann & Gundermann Ins. v Brassill, 46 AD3d 615, 617 [2d Dept 2007] (noting
that “[l]ost goodwill and lost opportunity are damages [that] . . . are difficult to quantify.
Accordingly, the Supreme Court properly found that the plaintiff would suffer irreparable harm
absent the issuance of a preliminary injunction”) (internal citations omitted)).6
Plaintiff has further established that the equities balance in its favor, as it alleges that
Plaintiff faces substantial and potentially catastrophic damage to its business in the absence of an
injunction, while Sinyavin would merely be required to comply with the two-year non-solicitation
and non-competition clauses in Article 9 of the Employment Agreement (see NYSCEF Doc. Nos.
1, 4-7; see also TDA, LLC, supra, 202 AD3d at 1475 [finding that “plaintiff established a balancing
of the equities in its favor by demonstrating that the preliminary injunction essentially maintains
the status quo under the terms of the agreements, to which defendants agreed”]; Newmark
Partners, L.P., supra, 200 AD3d at 558 [holding that “[t]he balance of equities also favors an
injunction. Plaintiffs seek to protect their client relationships, reputation, and goodwill after losing
all or almost all of their multifamily property group to their primary competitor. The fact that this
group represents only a small portion of plaintiffs’ total business is immaterial; it clearly has some
value, and plaintiffs are entitled to protect that value”]; Central Park Sightseeing LLC v New
Yorkers for Clean, Livable & Safe Sts., Inc., 157 AD3d 28, 33 [1st Dept 2017] (affirming the
Supreme Court’s issuance of preliminary injunctive relief and stating that “[t]he balance of the
equities weighs in plaintiff’s favor. Absent injunctive relief, plaintiff’s business would continue to
be harmed”)).
The Court agrees with Plaintiff that Defendants have exaggerated the potential effects of
injunctive relief upon Sinyavin in claiming that an injunction would “restrict her from working in
her chosen profession” (see NYSCEF Doc. No. 73 at p. 21). Rather, in addition to the critical fact
that injunctive relief would be strictly limited to a two-year period and to a 30-mile radius of
Plaintiff’s Scarsdale school, the plain terms of the Employment Agreement make clear that
Sinyavin is free to teach mathematics generally, as Article 9(c) unambiguously states that “nothing
in this Agreement will prohibit Employee . . . from working as a mathematics teacher in a public or
private full-day school setting after this Agreement is terminated” (see NYSCEF Doc. No. 4 at Art.
9[c]). As such, and given the potential damage to Plaintiff’s business from Sinyavin’s alleged
creation and operation of Logicus as a direct competitor of Plaintiff’s after-school math tutoring
program, the balancing of the equities favors Plaintiff, and warrants the granting of preliminary
injunctive relief (see TDA, LLC, supra, 202 AD3d at 1475; Newmark Partners, L.P., supra, 200
AD3d at 558; Central Park Sightseeing LLC, supra, 157 AD3d at 33).
6
Defendants’ lead case for the opposing proposition, Buchanan Capital Mkts., LLC v DeLucca, 144 AD3d 508, 509
(1st Dept 2016), is readily distinguishable in that the movant therein alleged no loss of go
Preview
FILED: WESTCHESTER COUNTY CLERK 05/15/2024 02:51 PM INDEX NO. 65180/2023 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 05/15/2024 To commence the statutory time 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 WESTCHESTER – I.A.S. PART PRESENT: HON. THOMAS QUIÑONES, J.S.C. -----------------------------------------------------------------------x RUSSIAN SCHOOL OF MATHEMATICS, INC., DECISION AND ORDER Plaintiff, Index No. 65180/2023 Motion Sequence Nos. 1, 2, 4 -against- IRENE SINYAVIN and LOGICUS, LLC, Defendants. ------------------------------------------------------------------------x The following papers were filed to the New York State Court Electronic Filing System (“NYSCEF”) and read on the motions by plaintiff Russian School of Mathematics, Inc. (“Plaintiff”) for an Order: (1) pursuant to CPLR 6301 and 7502(c) granting a preliminary injunction against defendant Irene Sinyavin (“Sinyavin”) (Seq. No. 1); and (2) pursuant to Judiciary Law § 753 and CPLR 5104 holding in contempt Sinyavin and defendant Logicus, LLC (“Logicus”) (together with Sinyavin, “Defendants”) (Seq. No. 2); and for such other and further relief as this Court deems just and proper: NYSCEF Document Nos. 1-8; 10-17; 19-20; 33-56; 73-81; 82-86;1 and 87-92. Factual and Procedural Background Plaintiff, which is an after-school math learning center located in Scarsdale, commenced this action on August 14, 2023 by way of its filing of the Summons and Complaint (NYSCEF Doc. No. 1). In sum and substance, the Complaint alleges that pursuant to an Employment Agreement dated March 12, 2021 (the “Employment Agreement”), Plaintiff hired Sinyavin to serve as its Principal (id. at ¶¶ 1-38). It further alleges that Plaintiff terminated Sinyavin’s employment on January 11, 2023, and that four days later, Sinyavin executed a Separation Agreement dated January 17, 2023 (the “Separation Agreement”) (id.). The Complaint alleges that Sinyavin 1 The Court on Motion Sequence No. 2 has considered Plaintiff’s supporting memorandum of law (NYSCEF Doc. No. 81), thus mooting Plaintiff’s separate motion (Seq. No. 4) for an Order pursuant to CPLR 2004 extending Plaintiff’s time to file its memorandum of law in support of Motion Seq. No. 2 (see NYSCEF Doc. Nos. 82-86). As such, Motion Sequence No. 4 is denied as moot. 1 1 of 16 FILED: WESTCHESTER COUNTY CLERK 05/15/2024 02:51 PM INDEX NO. 65180/2023 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 05/15/2024 subsequently breached the Employment Agreement’s “Non-Solicitation” and “Non-Competition” clauses by: (1) founding Logicus as a direct competitor of Plaintiff in the math tutoring business; (2) soliciting Plaintiff’s clients to enroll with Logicus; (3) making negative and/or disparaging statements and communications regarding Plaintiff; and (4) exploiting Plaintiff’s confidential business information to the competitive advantage of Logicus (id.). Based upon the foregoing general allegations, Plaintiff in the Complaint asserted: (1) first through fourth causes of action for breach of contract based upon the Employment Agreement against Sinyavin; (2) a fifth cause of action for breach of contract arising from the Separation Agreement against Sinyavin; (3) a sixth cause of action for tortious interference with contract against Logicus; (4) a seventh cause of action for misappropriation of trade secrets against both Defendants; and (5) an eighth cause of action for unfair competition against both Defendants (id. at ¶¶ 39-87). Simultaneously with the filing of its Summons and Complaint, Plaintiff on August 14, 2023 moved (Seq. No. 1) pursuant to CPLR 6301 and 7502(c) for a temporary restraining order and a preliminary injunction against Sinyavin (see NYSCEF Doc. Nos. 2-8), and Sinyavin promptly opposed the application for a temporary restraining order (see NYSCEF Doc. Nos. 10- 17). On August 25, 2023, the Court issued an Order to Show Cause with a temporary restraining order which provided that, pending a determination of the underlying motion for preliminary injunctive relief, Sinyavin was temporarily restrained from: (1) competing with Plaintiff through continued active employment by and/or the provision of services in support of Logicus or any other competitive entity; (2) directly or indirectly soliciting Plaintiff’s clients; (3) directly or indirectly soliciting Plaintiff’s employees; (4) disclosing or using any of Plaintiff’s confidential information, including client information; and (5) making any negative or disparaging communications regarding Plaintiff to its clients or prospective clients (see NYSCEF Doc. No. 19). On August 29, 2023, Plaintiff filed the $25,000 undertaking required by the Court’s August 25, 2023 Order to Show Cause with temporary restraining order (see NYSCEF Doc. No. 20). With the temporary restraining order in place, and Plaintiff’s motion for a preliminary injunction not yet having been fully briefed, Defendants on September 14, 2023 filed a Notice of Removal by which they removed this action to the United States District Court for the Southern District of New York (see NYSCEF Doc. No. 26). However, by Order dated October 18, 2023, the District Court (Halper, J.) remanded the case back to this Court for want of federal subject matter jurisdiction (see NYSCEF Doc. No. 66). With the action having been remanded back to this Court, Plaintiff on November 8, 2023 moved (Seq. No. 2) pursuant to Judiciary Law § 753 and CPLR 5104 for an Order holding Defendants in contempt for allegedly violating the terms of the Court’s August 25, 2023 temporary restraining order (see NYSCEF Doc. Nos. 33-56). Defendants thereafter jointly opposed both Plaintiff’s motion for a preliminary injunction and Plaintiff’s motion for contempt (see NYSCEF Doc. Nos. 73-80), and Plaintiff furnished a reply in further support of both motions (see NYSCEF Doc. Nos. 87-92). As such, the Court addresses herein Plaintiff’s two fully submitted motions, i.e., its motion for a preliminary injunction (Seq. No. 1) and its motion for contempt (Seq. No. 2). 2 2 of 16 FILED: WESTCHESTER COUNTY CLERK 05/15/2024 02:51 PM INDEX NO. 65180/2023 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 05/15/2024 Furthermore, as noted above, the Court also herein denies as moot Plaintiff’s related motion (Seq. No. 4) to extend Plaintiff’s time to file its memorandum of law in support of Motion Seq. No. 2 (see NYSCEF Doc. Nos. 82-86), as the Court has considered such memorandum of law (NYSCEF Doc. No. 81), rendering Motion Seq. No. 4 moot.2 Plaintiff’s Contentions in Support of Its Motion for a Preliminary Injunction In support of its motion for preliminary injunctive relief, Plaintiff furnishes its Complaint as verified by Plaintiff’s CEO, Ilya Rifkin (“Rifkin”), an affirmation from its counsel annexing thereto copies of documentary evidence including, inter alia, the Employment Agreement and the Separation Agreement, and a memorandum of law (see NYSCEF Doc Nos. 1-8). Plaintiff contends that its motion for an Order pursuant to CPLR 6301 and 7502(c) granting Plaintiff a preliminary injunction against Sinyavin should be granted in its entirety. Specifically, Plaintiff asserts that it has established that it is likely to succeed on the merits of, inter alia, its claims for breach of contract arising from the Employment Agreement as against Sinyavin, which allege that Sinyavin materially breached the “Non-Solicitation” and “Non-Competition” provisions of Articles 9(a) and 9(c) of the Employment Agreement by soliciting Plaintiff’s clients and by providing services for a competitor, namely Logicus, during the two-year prohibited period following Plaintiff’s January 17, 2023 termination of Sinyavin’s employment. Plaintiff argues that the documentary evidence furnished in support of its motion, and the allegations in its Complaint as verified by Rifkin, collectively demonstrate that Sinyavin founded Logicus to compete directly with Plaintiff in the greater Scarsdale area, and that Sinyavin serves as Logicus’ Principal, which is the same position that Sinyavin held for Plaintiff, and further reflect that Sinyavin has materially breached the Employment Agreement by soliciting Plaintiff’s clients for enrollment at Logicus. Plaintiff also contends that it will suffer irreparable injury absent a preliminary injunction, as the loss of client relationships and customer goodwill that is resulting from Sinyavin’s material breach of the Employment Agreement’s “Non-Solicitation” and “Non-Competition” provisions is irreparably injuring Plaintiff’s business and reputation. Plaintiff asserts that the result of Sinyavin’s conduct, namely, the loss of confidential information, the loss of clients and employees, and the loss of reputation via disparagement, cannot be adequately remedied by monetary relief, thus requiring that Plaintiff obtain preliminary injunctive relief as against Sinyavin. Plaintiff further argues that the equities balance in its favor, as it faces catastrophic damage to its business in the absence of an injunction, while Sinyavin will suffer only the inconvenience directly caused by her own breaches of the Employment Agreement, such that she will have to temporarily close, divest or relocate Logicus, which entity Sinyavin created in material breach of the two-year non-solicitation and non-competition clauses of the Employment Agreement. 2 Motion Seq. No. 3 was Defendants’ motion to stay this action so that they could obtain new counsel, and following Defendants’ retention of such new counsel, the motion was denied as moot by Decision and Order dated January 9, 2024 (see NYSCEF Doc. No. 71). 3 3 of 16 FILED: WESTCHESTER COUNTY CLERK 05/15/2024 02:51 PM INDEX NO. 65180/2023 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 05/15/2024 Accordingly, Plaintiff contends that the Court should grant in its entirety Plaintiff’s motion for a preliminary injunction as against Sinyavin pursuant to CPLR 6301 and 7502(c). Defendants’ Contentions in Opposition to Plaintiff’s Motion for a Preliminary Injunction In opposition to Plaintiff’s motion for preliminary injunctive relief, Defendants furnish affidavits from Sinyavin, affirmations from counsel annexing documentary evidence thereto, and memoranda of law (see NYSCEF Doc. Nos. 10-14; 73-80). Defendants contend that Plaintiff’s motion for a preliminary injunction as against Sinyavin should be denied in its entirety. Specifically, Defendants assert that Plaintiff has not established a likelihood of success on the merits of its claims as against Sinyavin for breach of contract arising from the Employment Agreement. They argue that the “Non-Competition” clause set forth in Article 9(c) of the Employment Agreement is unenforceable because Plaintiff subsequently terminated Sinyavin’s employment without cause. Defendants also contend that Article 9(c) should not be enforced by this Court because it is unreasonable in terms of scope, time, and geographic area, it is unnecessary to protect Plaintiff’s interests, it is harmful to the public, and it is unduly burdensome to Sinyavin. Defendants further assert that Plaintiff is not likely to succeed on the merits of its breach of contract claims arising from the Employment Agreement because the “Non-Solicitation” clause of Article 9(a) is unenforceable where, as here, Plaintiff terminated Sinyavin’s position as President without cause, and further because Sinyavin did not solicit any active employees of Plaintiff and nor did she disparage Plaintiff or disclose its confidential information. Defendants also argue that Plaintiff’s motion should be denied because it has failed to demonstrate that Plaintiff will suffer irreparable harm in the absence of preliminary injunctive relief as against Sinyavin. In particular, Defendants contend that Plaintiff’s submissions do not demonstrate by clear and convincing evidence that Plaintiff has lost multiple clients and instead identify only one specific client that left Plaintiff’s school and enrolled in Logicus; and that in any event, even Plaintiff’s theoretical loss of numerous clients can be compensated by monetary damages. Defendants also assert that Plaintiff has not demonstrated any loss of goodwill due to Sinyavin’s creation of Logicus, and that Plaintiff’s claims of lost confidential information, lost clients and reputational damage are not substantiated by Plaintiff’s submissions. Defendants further argue that Plaintiff’s motion should be denied because the balancing of the equities favors Sinyavin and not Plaintiff. Specifically, Defendants contend that the fact that Plaintiff terminated Sinyavin’s employment without cause and now seeks to restrict her from working in her chosen profession strongly tips the equities in favor of Sinyavin. Defendants also assert that the equities favor Sinyavin because the “Non-Solicitation” and “Non-Competition” provisions of Articles 9(a) and 9(c) of the Employment Agreement are far broader than necessary to protect Plaintiff’s legitimate business interests, and thus should be deemed unenforceable. Defendants argue that if these clauses are enforced they would effectively bar Sinyavin from 4 4 of 16 FILED: WESTCHESTER COUNTY CLERK 05/15/2024 02:51 PM INDEX NO. 65180/2023 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 05/15/2024 employment in her field, and that they are designed to eradicate competition entirely and to frighten other of Plaintiff’s employees who may consider tutoring math elsewhere. Accordingly, Defendants conclude that the Court should deny in its entirety Plaintiff’s motion for a preliminary injunction as against Sinyavin pursuant to CPLR 6301 and 7502(c).3 Plaintiff’s Contentions in Support of Its Motion for Contempt In support of its motion for contempt, Plaintiff submits an affirmation from its counsel annexing documentary evidence thereto, as well as a memorandum of law (see NYSCEF Doc. Nos. 34-56; 81). Plaintiff contends that it has established by clear and convincing evidence entitlement to an Order pursuant to Judiciary Law § 753 and CPLR 5104 holding Defendants in contempt. In particular, Plaintiff asserts that the temporary restraining order issued by this Court on August 25, 2023 is a lawful and binding Order that unequivocally prevents Defendants from competing with Plaintiff’s mathematic tutoring center in the greater Scarsdale area. Plaintiff argues that Defendants were aware of the temporary restraining order, but blatantly and willfully disobeyed it by: (1) posting on LinkedIn on August 27, 2023 information regarding a job for a mathematics teacher at Logicus; (2) Sinyavin communicating on September 7, 2023 with a parent who had inquired about enrollment in Logicus, and inviting the parent to bring the child in for an assessment on September 8, 2023; and (3) Defendants continuing to operate Logicus in September 2023 as evidenced by Plaintiff’s private investigator noting that several cars seen dropping off children at Logicus are registered to parents of Plaintiff’s former students. Plaintiff further contends that Defendants removed this action to federal court on September 14, 2023 in “bad faith” so as to avoid the constraints of the temporary restraining order that had been put in place by this Court on August 25, 2023. Plaintiff also asserts that it has been prejudiced by Defendants’ disobedience of the temporary restraining order. Specifically, it contends that the temporary restraining order was issued so as to permit Plaintiff to operate its mathematics tutoring programs free of unfair competition from Defendants in violation of Sinyavin’s contractual obligations pursuant to the Employment Agreement. Plaintiff argues that because Sinyavin continues to operate Logicus as if this Court’s temporary restraining order did not exist, Plaintiff has been forced into a position in which it is not only competing with Logicus for teachers and students, but Plaintiff has also lost several students due to Sinyavin’s “poaching” thereof. As such, Plaintiff asserts that Defendants’ willful disobedience of the temporary restraining order has prejudiced Plaintiff’s rights thereunder. Accordingly, Plaintiff concludes that this Court should issue an Order pursuant to Judiciary Law 3 Neither Plaintiff’s moving submissions nor Defendants’ submissions in opposition directly address the issue of the requirement of an undertaking for preliminary injunctive relief (see Karr Graphics Corp. v Spar Knitwear Corp., 192 AD3d 673, 676 [2d Dept 2021] (stating that “[p]ursuant to CPLR 6312[b], the beneficiary of a preliminary injunction must post an undertaking, the purpose of which is to compensate the enjoined party for damages incurred by reason of the injunction in the event it is determined that the beneficiary was not entitled to the injunction”)). 5 5 of 16 FILED: WESTCHESTER COUNTY CLERK 05/15/2024 02:51 PM INDEX NO. 65180/2023 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 05/15/2024 § 753 and CPLR 5104 holding Defendants in contempt. Defendants’ Contentions in Opposition to Plaintiff’s Motion for Contempt In opposition to Plaintiff’s motion for contempt, Defendants furnish a memorandum of law (see NYSCEF Doc. No. 74). Defendants contend that because Plaintiff has failed to demonstrate its entitlement to an Order of contempt by clear and convincing evidence, Plaintiff’s motion should be denied in its entirety. Specifically, Defendants argue that Plaintiff’s submissions fall well short of the high burden of proof that applies to a motion for contempt, as Plaintiff has not shown by clear and convincing evidence both that Sinyavin violated the terms of the temporary restraining order and that Plaintiff suffered prejudice as a direct result thereof, which requires the denial of Plaintiff’s contempt motion. Defendants assert that Plaintiff has not established by clear and convincing evidence that Sinyavin continues to compete with Plaintiff’s mathematics tutoring program in violation of the temporary restraining order issued by this Court on August 25, 2023. Defendants contend that Plaintiff has improperly attempted to broaden the plain terms of the temporary restraining order by misleadingly framing it as having wholly prohibited Sinyavin from continuing to operate Logicus, when in fact the temporary restraining order is more limited and only bars Sinyavin from “competing with [Plaintiff] through active employment by and/or [through] the provision of services in support of Logicus, LLC or any other competitive entity.” Defendants argue that the job posting by Logicus cited by Plaintiff is not prohibited by the temporary restraining order, which only applies to Sinyavin, and that in any event this job posting was placed on LinkedIn prior to the temporary restraining order having been served upon Sinyavin. Defendants also assert that the September 7, 2023 email communication cited by Plaintiff as purportedly reflecting that Sinyavin was communicating with a parent who had inquired about enrollment in Logicus, was in fact an email sent by Plaintiff’s private investigator using an alias in an effort to entrap Sinyavin into violating the temporary restraining order. Defendants further contend that Plaintiff’s private investigator’s notes regarding cars stopping in front of Logicus having been registered to parents of Plaintiff’s former students intentionally omit the key fact that such investigator failed to specifically observe Sinyavin at Logicus’ offices, and thus his submission falls far short of constituting clear and convincing evidence of Sinyavin’s alleged violation of the temporary restraining order. Defendants also argue that Plaintiff has not established by clear and convincing evidence that it has been prejudiced by Sinyavin’s alleged violation of the temporary restraining order. In particular, Defendants assert that Plaintiff has not explained how it has suffered any prejudice whatsoever, and has not furnished any evidence – let alone clear and convincing evidence – that Plaintiff lost a single student to Logicus or was otherwise adversely affected by Defendants after the temporary restraining order was issued and served upon Sinyavin. Defendants contend that 6 6 of 16 FILED: WESTCHESTER COUNTY CLERK 05/15/2024 02:51 PM INDEX NO. 65180/2023 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 05/15/2024 Plaintiff’s use of a private investigator to ensnare Sinyavin in a violation of the terms of the temporary restraining order is wholly insufficient for purposes of establishing prejudice, as the private investigator was acting under an alias and was not actually the parent of a child enrolled at Plaintiff’s mathematics school that left such enrollment so as to join Logicus. As such, Defendants argue that Plaintiff has not met its burden of establishing by clear and convincing evidence that it has suffered any prejudice whatsoever due to Sinyavin’s purported violation of the temporary restraining order. Defendants accordingly conclude that this Court should deny in its entirety Plaintiff’s motion for an Order pursuant to Judiciary Law § 753 and CPLR 5104 holding Defendants in contempt. Plaintiff’s Motion for a Preliminary Injunction It is well-settled that “[t]o establish the right to a preliminary injunction, a movant must demonstrate (1) the likelihood of success on the merits, (2) irreparable injury absent a preliminary injunction, and (3) that the equities balance in the movant’s favor” (Benaim v S2 Corona, LLC, 214 AD3d 760, 761 [2d Dept 2023], citing CPLR § 6301 and Cong. Machon Chana v Machon Chana Women’s Inst., Inc., 162 AD3d 635, 637 [2d Dept 2018]). “The decision whether to grant or deny a preliminary injunction rests in the sound discretion of the court hearing the motion” (Benaim, 214 AD3d at 760). However, “[a] preliminary injunction is a drastic remedy and the [movant], to be entitled to injunctive relief, must establish a clear right under the law and the undisputed facts” (Putter v Singer, 73 AD3d 1147, 1149 [2d Dept 2010] (internal quotations omitted); accord Mobstub, Inc. v www.staytrendy.com, 153 AD3d 809, 810 [2d Dept 2017] (stating that “[a] party seeking the drastic remedy of a preliminary injunction has the burden of demonstrating, by clear and convincing evidence, (1) a likelihood of ultimate success on the merits, (2) the prospect of irreparable injury if the provisional relief is withheld, and (3) a balancing of the equities in the movant’s favor”)). Having reviewed the parties’ submissions, the Court determines that Plaintiff has established a likelihood of success on the merits of its first through fourth causes of action for breach of contract4 arising from the Employment Agreement as against Sinyavin. Article 9 of the Employment Agreement is entitled “Non-Competition and Non-Solicitation,” and in relevant part includes Article 9(a) regarding “Non-Solicitation-Clients” and Article 9(c) concerning “Non- Competition” (see NYSCEF Doc. No. 4). As set forth below, these provisions respectively and unambiguously set forth a two-year non-solicit and non-compete period commencing from Plaintiff’s termination of Sinyavin’s employment, which termination occurred on January 17, 2023 by way of the Separation Agreement (see NYSCEF Doc. No. 5), and which two-year period therefore ends on January 17, 2025 (see NYSCEF Doc. No. 4). These two contractual provisions in the Employment Agreement state in relevant part as follows: 4 “The essential elements of a breach of contract cause of action are the existence of a contract, the plaintiff’s performance under the contract, the defendant’s breach of that contract, and resulting damages” (Blank v Petrosyants, 203 AD3d 685, 688 [2d Dept 2022], quoting Liberty Equity Restoration Corp. v Yun, 160 AD3d 623, 626 [2d Dept 2018]). 7 7 of 16 FILED: WESTCHESTER COUNTY CLERK 05/15/2024 02:51 PM INDEX NO. 65180/2023 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 05/15/2024 (a) Non-Solicitation - Clients. During Employee’s employment with RSM and for a period of two years after the end of his/her employment for any reason (the “Non-Solicit Term”), she will not, on behalf of her/himself or any other individual or entity, directly or indirectly solicit or accept any business from, or perform any services of the type performed by the Company for any Client of the Company. The term “Client” shall mean any individual, student, parent or entity to which the Company provided, or with which the Company was communicating in an effort to provide services within one year prior to his/her termination date. Employee also agrees not to attempt to divert, entice or otherwise induce any Client to sever or reduce its business relationship with the Company. Accordingly, Employee agrees that during the Non-Solicit Term she will not refer a Client to a Competitive Business, as defined below, or assist any Competitive Business to solicit work of the type performed by RSM from any Client . . . (c) Non-Competition. To protect the Company’s Resources and Confidential Information, at any time during his/her employment and for a period of two years after the end of Employee’s employment (“Non-Compete Term”) the Employee: She will not become employed by, advise, consult with, provide services to, or act as an agent for, any Competitive Business. A “Competitive Business” is any entity which is, or plans to become, engaged in any activity which is competitive with the Company’s business, including but not limited to, tutoring mathematics or providing services to any program offering mathematics instruction. Nothing in this Agreement will prohibit Employee from continuing the activities listed in Appendix B (Approved Activities) or from working as a mathematics teacher in a public or private full-day school setting after this Agreement is terminated. In addition, Employee will not acquire an ownership interest in any Competitive Business during the Non-Compete Term. However, Employee may acquire stock in a Competitive Business that is publicly traded, provided any stock constitutes less than three percent (3%) of the outstanding securities of the Competitive Business. Employee may also own mutual funds which hold stock in a Competitive Business, provided Employee cannot control or direct the purchase of stock by the mutual fund. (d) Geographic Scope. The Non-Solicitation and Non-Competition restrictions in this section will apply to all Competitive Businesses within a thirty (30) miles radius of any of RSM’s branches or affiliate[s], wherever located (see NYSCEF Doc. No. 4) (emphases added). 8 8 of 16 FILED: WESTCHESTER COUNTY CLERK 05/15/2024 02:51 PM INDEX NO. 65180/2023 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 05/15/2024 Based upon the foregoing language, Article 9 of the Employment Agreement unambiguously states that Sinyavin agreed that during the two-year non-solicit and non-compete period from January 17, 2023 through January 17, 2025, she would not “become employed by, advise, consult with, provide services to, or act as an agent for, any Competitive Business,” and “will not acquire an ownership interest in any Competitive Business during the Non-Compete Term” (see NYSCEF Doc. No. 4 at Arts. 9[a] and [c]). Moreover, Article 9(d) of the Employment Agreement makes clear that the prohibition on Sinyavin working for and/or owning a “Competitive Business” applies to such businesses located within a 30 mile radius of Plaintiff’s math tutoring school, which is located in Scarsdale (id. at Art. 9[d]).5 As such, the Employment Agreement’s plain terms collectively make apparent that this contract would be materially breached if Sinyavin were to work for or own a competitive business within 30 miles of Plaintiff’s Scarsdale location during the two-year non-solicit and non-compete period ending on January 17, 2025. And this is precisely the allegation underlying Plaintiff’s first four causes of action for breach of contract, and in particular the first and second causes of action, namely, that Sinyavin materially breached Article 9 of the Employment Agreement by, inter alia, owning and operating Logicus as a competitive business offering math tutoring services in the greater Scarsdale area (see NYSCEF Doc. No. 1 at ¶¶ 39-69). In the Court’s review of the above-referenced unambiguous terms of Article 9 of the Employment Agreement, as well as Plaintiff’s submissions in support of its motion for preliminary injunctive relief, the Court determines that Plaintiff has established a likelihood of success on the merits of its breach of contract claims against Sinyavin. The Court agrees with Plaintiff that it has established the existence of valid contractual documents, as both the Employment Agreement and the Separation Agreement (which includes Sinyavin’s January 17, 2023 termination date) are executed by Sinyavin and constitute valid contracts between Sinyavin and Plaintiff (see NYSCEF Doc. Nos. 4-5). The record before the Court on this motion also reflects that Plaintiff performed its contractual obligations under both agreements, as Plaintiff employed Sinyavin as its Principal in accordance with the Employment Agreement’s terms, and Plaintiff similarly acted in compliance with the Separation Agreement in furnishing to Sinyavin the agreed-upon severance payment equal to three months of Sinyavin’s salary. Furthermore, through the allegations in the Complaint as verified by Rifkin, and by way of the documentary evidence furnished on this motion, Plaintiff has established a likelihood of success on the merits of its claim that Sinyavin materially breached Article 9 of the Employment Agreement by founding Logicus in the greater Scarsdale area, by providing mathematics tutoring services by way of that competitive business entity, and by soliciting current and/or former students of Plaintiff’s mathematics school to enroll at Logicus, which has caused Plaintiff to suffer related damages (see NYSCEF Doc. Nos. 1, 4-7). Based upon the foregoing, and without opining as to whether Plaintiff may ultimately 5 Although the 30 mile radius in Article 9(d) is broadly measured from the location of “any of [Plaintiff]’s branches or affiliate[s],” Plaintiff states that it “only seeks to enforce the provision with respect to its Scarsdale location where Sinyavin was employed as the principal” (see NYSCEF Doc. No. 8 at fn. 2). 9 9 of 16 FILED: WESTCHESTER COUNTY CLERK 05/15/2024 02:51 PM INDEX NO. 65180/2023 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 05/15/2024 prevail on the merits of its breach of contract claims, the Court finds that for purposes of this preliminary injunction motion, Plaintiff has established a likelihood of success on the merits (see NYSCEF Doc. Nos. 1, 4-7; see also Camp Bearberry, LLC v Khanna, 212 AD3d 897, 899 [3d Dept 2023] (stating that “on the record before us, we are satisfied that plaintiff established a likelihood of success on the merits” and affirming the Supreme Court’s granting of plaintiff’s motion for preliminary injunctive relief); Newmark Partners, L.P. v Hunt, 200 AD3d 557, 557 [1st Dept 2021] (affirming the Supreme Court’s issuance of a preliminary injunction enjoining defendants from competing with plaintiffs for one year and stating that “[p]laintiffs demonstrated a likelihood of success on the merits of their action to enforce a noncompetition provision”); McMahon v Cobblestone Lofts Condominium, 161 AD3d 536, 537 [1st Dept 2018] (holding that the Supreme Court “properly granted plaintiffs’ subsequent motion for a preliminary injunction” where “Plaintiff demonstrated a likelihood of success on the merits”); Matter of 1650 Realty Assoc., LLC v Golden Touch Mgt., Inc., 101 AD3d 1016, 1018 [2d Dept 2012] (finding that “the petitioners demonstrated a likelihood of ultimate success on their claims” and that “[a]ccordingly, the Supreme Court providently exercised its discretion in granting the petitioners’ motion for a preliminary injunction”); Thilberg v Mohr, 74 AD3d 1055, 1055 [2d Dept 2010] (holding that the “Supreme Court properly granted the motion for a preliminary injunction” where “[t]he plaintiffs demonstrated a likelihood of success on the merits”); Destiny USA Holdings, LLC v Citigroup Global Mkts. Realty Corp., 69 AD3d 212, 219-220 [4th Dept 2009] (affirming the Supreme Court’s granting of preliminary injunctive relief in connection with a finding that plaintiff was likely to succeed on the merits of its breach of contract claim)). The Court does not credit Defendants’ argument that Plaintiff is unlikely to succeed on the merits on the ground that this Court should not enforce Article 9(c) of the Employment Agreement because, inter alia, it is unreasonable in terms of scope, time, and geographic area and is therefore unduly burdensome to Sinyavin. Rather, the Court finds that Article 9(c) and the related geographic limitation in Article 9(d) is reasonably limited in only applying to competitive businesses offering “mathematics instruction” and “tutoring” within a 30 mile radius of Plaintiff’s Scarsdale-based school, and is enforceable as it is reasonably limited to a two-year period following the termination of Sinyavin’s employment with Plaintiff (see NYSCEF Doc. No. 4 at Arts. 9[c] and [d]; see also Gelder Medical Group v Webber, 41 NY2d 680, 685 [1977] (enforcing a non-competition provision and holding that “it was not unreasonable to extend the covenant to a radius of 30 miles of the village, and it was certainly quite reasonable to limit the noncompetition term to five years”); Delta Enter. Corp. v Cohen, 93 AD3d 411, 412 [1st Dept 2012] (rejecting defendant’s argument that a restrictive covenant was unenforceable and stating that “extending the duration of the preliminary injunction until two years after entry of the temporary restraining order, or until resolution at trial, whichever is earlier, appears to be the only means by which to ensure the preservation of the status quo pending a final resolution of this action”)). The Court also does not agree with Defendants’ related assertion that the “Non- Competition” clause set forth in Article 9(c) of the Employment Agreement is unenforceable because Plaintiff subsequently terminated Sinyavin’s employment without cause. As correctly 10 10 of 16 FILED: WESTCHESTER COUNTY CLERK 05/15/2024 02:51 PM INDEX NO. 65180/2023 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 05/15/2024 noted by Plaintiff in its reply papers (see NYSCEF Doc. Nos. 90-91), the Separation Agreement makes clear that the parties agreed that if Sinyavin complied with the terms thereof, Plaintiff would forgo asserting that Sinyavin’s termination was for “Cause” under the terms of the Employment Agreement, as such designation would have numerous negative consequences for Sinyavin. Article 2 of the Separation Agreement concerns “Payments” and states as follows: Provided Employee executes, complies with and does not revoke this Agreement, the Company will pay Employee her base salary, minus applicable payroll deductions, for three months (the “Severance Payments”). The Severance Payments will be made on the Company’s normal payroll schedule and will begin with the next scheduled salary payment that is at least eight days after Employee has executed this Agreement. Provided Employee executes, complies with and does not revoke this Agreement, the Company will also pay Employee pro-rated Branch Profit Sharing Credits of $1,567 from her branch and forgo asserting that the termination was for “Cause” under her employment agreement (see NYSCEF Doc. No. 5 at Art. 2). Accordingly, given that the record on this motion reflects that Plaintiff terminated Sinyavin for cause but the parties agreed to deem such termination to be without cause in exchange for, inter alia, Sinyavin’s compliance with the Separation Agreement and Plaintiff’s payment to Sinyavin of three months of severance pay and certain profit sharing credits – in addition to allowing Sinyavin to apply for government unemployment benefits – Defendants cannot credibly seek to use this negotiated contractual concession in the Separation Agreement to render unenforceable Article 9(c) of the Employment Agreement (see NYSCEF Doc. Nos. 1, 4-7; 90). Therefore, for the reasons stated above, plaintiff has established a likelihood of success on the merits of its breach of contract claims as against Sinyavin, satisfying the first of three requisite elements for preliminary injunctive relief (see Benaim, supra, 214 AD3d at 761; Mobstub, Inc., 153 AD3d at 810). Plaintiff has also established, by way of the Complaint as verified by Rifkin and by the documentary evidence furnished in support of its motion, that it will suffer irreparable injury absent preliminary injunctive relief (see NYSCEF Doc. Nos. 1, 4-7). The Court agrees with Plaintiff that the loss of customer relationships and goodwill and the damage to customer relationships that is resulting from Sinyavin’s alleged material breaches of the Employment Agreement’s “Non- Solicitation” and “Non-Competition” provisions is irreparably injuring Plaintiff’s business and reputation, and that such losses cannot be readily quantified or remedied by monetary damages alone, as urged by Defendants (see TDA, LLC v Lacey, 202 AD3d 1474, 1475 [4th Dept 2022] (affirming the Supreme Court’s issuance of preliminary injunctive relief and stating that “[w]e note in particular that plaintiff established irreparable injury in the form of loss of goodwill and damage 11 11 of 16 FILED: WESTCHESTER COUNTY CLERK 05/15/2024 02:51 PM INDEX NO. 65180/2023 NYSCEF DOC. NO. 98 RECEIVED NYSCEF: 05/15/2024 to customer relationships”) (internal quotation omitted); Marcone APW, LLC v Servall Co., 85 AD3d 1693, 1697 [4th Dept 2011] (holding that “[t]he loss of goodwill and damage to customer relationships, unlike the loss of specific sales, is not easily quantified or remedied by monetary damages”); Gundermann & Gundermann Ins. v Brassill, 46 AD3d 615, 617 [2d Dept 2007] (noting that “[l]ost goodwill and lost opportunity are damages [that] . . . are difficult to quantify. Accordingly, the Supreme Court properly found that the plaintiff would suffer irreparable harm absent the issuance of a preliminary injunction”) (internal citations omitted)).6 Plaintiff has further established that the equities balance in its favor, as it alleges that Plaintiff faces substantial and potentially catastrophic damage to its business in the absence of an injunction, while Sinyavin would merely be required to comply with the two-year non-solicitation and non-competition clauses in Article 9 of the Employment Agreement (see NYSCEF Doc. Nos. 1, 4-7; see also TDA, LLC, supra, 202 AD3d at 1475 [finding that “plaintiff established a balancing of the equities in its favor by demonstrating that the preliminary injunction essentially maintains the status quo under the terms of the agreements, to which defendants agreed”]; Newmark Partners, L.P., supra, 200 AD3d at 558 [holding that “[t]he balance of equities also favors an injunction. Plaintiffs seek to protect their client relationships, reputation, and goodwill after losing all or almost all of their multifamily property group to their primary competitor. The fact that this group represents only a small portion of plaintiffs’ total business is immaterial; it clearly has some value, and plaintiffs are entitled to protect that value”]; Central Park Sightseeing LLC v New Yorkers for Clean, Livable & Safe Sts., Inc., 157 AD3d 28, 33 [1st Dept 2017] (affirming the Supreme Court’s issuance of preliminary injunctive relief and stating that “[t]he balance of the equities weighs in plaintiff’s favor. Absent injunctive relief, plaintiff’s business would continue to be harmed”)). The Court agrees with Plaintiff that Defendants have exaggerated the potential effects of injunctive relief upon Sinyavin in claiming that an injunction would “restrict her from working in her chosen profession” (see NYSCEF Doc. No. 73 at p. 21). Rather, in addition to the critical fact that injunctive relief would be strictly limited to a two-year period and to a 30-mile radius of Plaintiff’s Scarsdale school, the plain terms of the Employment Agreement make clear that Sinyavin is free to teach mathematics generally, as Article 9(c) unambiguously states that “nothing in this Agreement will prohibit Employee . . . from working as a mathematics teacher in a public or private full-day school setting after this Agreement is terminated” (see NYSCEF Doc. No. 4 at Art. 9[c]). As such, and given the potential damage to Plaintiff’s business from Sinyavin’s alleged creation and operation of Logicus as a direct competitor of Plaintiff’s after-school math tutoring program, the balancing of the equities favors Plaintiff, and warrants the granting of preliminary injunctive relief (see TDA, LLC, supra, 202 AD3d at 1475; Newmark Partners, L.P., supra, 200 AD3d at 558; Central Park Sightseeing LLC, supra, 157 AD3d at 33). 6 Defendants’ lead case for the opposing proposition, Buchanan Capital Mkts., LLC v DeLucca, 144 AD3d 508, 509 (1st Dept 2016), is readily distinguishable in that the movant therein alleged no loss of go