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COURTS HAVE THE POWER TO LIMIT THE REACH OF OVERLY BROAD RESTRICTIVE COVENANTS IN COMMERCIAL CONTRACTS (SECOND DEPT).

The Second Department, in a full-fledged opinion by Justice Connelly, affirming Supreme Court, discussed in detail the courts’ power to limit the reach of overly broad restrictive covenants in commercial contracts. Here the plaintiff and defendant collaborated for decades in the design and manufacture of fabrics to be used in solar shades. Upon terminating the contractual arrangement, the question became whether the restrictive covenants in the contract are enforceable. Because the opinion addresses the issues in the context of motions to dismiss, most of the findings were preliminary and must await a more complete record. But the Second Department did conclude courts have the power to limit the enforcement of overly broad restrictive covenants in commercial contracts, short of re-writing the contract:

This appeal requires us to analyze the factors to consider when evaluating whether a restrictive covenant in an ordinary commercial contract is enforceable. Although there is a dearth of New York state case law on this issue, we agree with those courts that have analyzed these types of covenants under a rule of reason, considering (1) whether the covenant protects a legitimate business interest; (2) the reasonableness of the geographic scope and temporal duration; and (3) the degree of hardship upon the party against whom the covenant is enforced.

This appeal also requires us to consider whether courts have the power to sever and grant partial enforcement of overly broad restrictive covenants in ordinary commercial contracts. Because the Court of Appeals has held that courts have such power with regard to overly broad restrictive covenants in employment agreements (see BDO Seidman v Hirshberg, 93 NY2d 382, 395), we similarly hold that courts have the power to sever and grant partial enforcement of overly broad restrictive covenants in ordinary commercial contracts and may do so under the appropriate circumstances. Twitchell Tech. Prods., LLC v Mechoshade Sys., LLC, 2024 NY Slip Op 01744, Second Dept 3-27-24

Practice Point: Courts have to power to limit the reach of overly broad restrictive covenants in commercial contracts, criteria explained in depth.

 

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