Case No. 60 AGREEMENT NOT TO COMPETE Sung v. Ramirez Supreme Court, Queens Count

Question

Case No. 60 AGREEMENT NOT TO COMPETE Sung v. Ramirez Supreme Court, Queens County 121 Misc.2d 313, 467 N.Y.S.2d 486 (1983) FACTS: Plaintiff Foyer Key Sung (Sung) purchased from Defendant Juan Ranite contained an agreement not to compete, which stated, "And the Transferor covenants and (Ramirez) a deli-grocery known as The Broadway Store for $27,000.00. The sales co agrees to and with the Transferee not to re-establish, reopen, be engaged in, nor in anv manner whatsoever become interested, directly or indirectly, either as employee, as owners, as partners, as agent or as stockholders, director or officer of the corporation, or otherwise, in any business, trade or occupation similar to the one hereby sold, within the County of Richmond for 5 years." Nine months later Ramirez leased a building he owned to one Raphael Diaz. The lease tated that the building would be used as a deli-grocery. The building was 2-1/2 blocks from The Broadway Store. Once Diaz opened the deli-grocery, The Broadway Store s weekly gross revenues decreased by about $4,000 .00. Sung attributed the decrease to the ed that opening of Diaz' deli-grocery. Sung claimed Ramirez' lease with Diaz violated Ramirez t not to compete and sued Ramirez for breach of contract. Ramirez den the lease violated the contract. FIRST ISSUE: Is a promise not to compete with a deli-grocery valid when county-wide area and lasts for five years? it covers a DECISION: Yes, with modification of the applicable territory REASONING: A promise not to compete made by a seller of a business to the buyet enforceable provided it is no more restrictive than is reasonably necessary to pro good will purchased by the buyer. The agreement not to compete signed o rom operating or acquiring an interest in a competing business (n, County, which encompasses all of Staten Island. The five-year peretoo broad unreasonable. The county-wide territory appeared to the court, hovw The court concluded it had the authority to reduce the geographical agreement as so modified. In this case the 2-1/2 blocks which separa were within what would be a reasonable geographical area w Ramirez from competition. Therefore, the promise not to compete area and enforce the within which to was valid in the SECOND ISSUE: Does the seller of a business violate a promi leasing a building to tenants whose business competes with the business so by the se

Explanation / Answer

Police officers conducted a search of the apartment complex’s common areas with a narcotics detection dog.
The complex’s management company had consented to the search and let the dog and police officers into the complex.
The dog was first allowed to walk throughout the hallway without direction and then directed to sniff at the bottom of the door of each apartment.
Dog sniffed the defendant’s door, he signaled that he detected narcotics.
The police obtained and executed a search warrant for the apartment, and the defendant was charged with drug and firearm offenses based on evidence seized in the search.
If you are a defendendant focus on fourth ammendment of the federal constitution that says unwarranted seizure and search is aviolation of privacy on the ground that it was the fruit of an illegal search because the warrantless use of the dog violated the fourth amendment of the federal constitution.

Argue that the entry of the dog and police officers into the hallway area immediately outside his door was an unlawful trespass because that area constituted the curtilage of his apartment.
Argue that the dog’s “sniff search” violated his reasonable expectation of privacy in his home.
Give reference of Florida v. Jardines, 133 S. Ct. 1409 (2013), held to be a trespassory invasion of the house’s curtilage in violation of the fourth amendment.
Give that the defendent has a reasonable expectation of privacy issue,
Give reference to Kyllo v. United States, 533 U.S. 27, 40 (2001) that held to be an unlawful search because it involved the use of “a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion.”

If your are a prosecutor argue thatthat the use of the dog did not constitute a fourth amendment search requiring a warrant.

Argue that the hallway area outside the defendant’s door did not constitute the curtilage of his apartment because it was a publicly accessible space in which the dog and police officers were lawfully present such that the defendant had no reasonable expectation of privacy there.

Argue that dog is not a deviceas the dog was trained to detect only narcotics, and the defendant had no expectation of privacy in such contraband.

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