Elfvin, Judge
Presently before the undersigned is plaintiff's motion for a Temporary Restraining Order and/or Preliminary Injunction pursuant to Rule 65 of the Federal Rules of Civil Procedure ("FRCvP"). For the reasons set forth below, such motion is granted in part and denied in part.
Vesuvius is a corporation engaged in the business of, inter alia, furnishing products for the molten metal industry. Beginning in April 1993, defendant was employed by plaintiff in various sales positions and, as a natural result of his being employed in these sales positions, was privy to confidential company information. Defendant left the employ of plaintiff in April 2001 and began working for Onex, Inc. ("Onex"), a corporation also engaged in the distribution and installation of products for the molten metal industry, as Sales and Operations Manager for such company's New York office. Within days after defendant began working for Onex, moreover, defendant secured an order from a company which has been characterized both as one of plaintiff's largest customers and a longtime customer of Onex. As set forth more fully in the Complaint and in the papers proffered for this Court's consideration, plaintiff principally avers that, but for defendant's access to, and knowledge of, its confidential information, such order would not have been obtained and is indicative of defendant's attempt to draw on plaintiff's confidential and proprietary information for the benefit of himself and his new employer, and to the detriment of plaintiff. Consequently, plaintiff now desires an order that enjoins defendant from taking, disclosing or using plaintiff's confidential or proprietary information, that enjoins defendant from engaging in competition with plaintiff — including working in sales for Onex — pursuant to a covenant not to compete clause in their 1993 Employment Agreement ("Employment Agreement"), that enjoins defendant from soliciting the employment of plaintiff's employees and that enjoins defendant from otherwise violating any written agreements he has made with plaintiff.
At the hearing on this matter and in the papers proffered for this Court's review, defendant argues that, except insofar as plaintiff seeks an order enjoining defendant from working in sales for Onex, there is no opposition to the instant motion because defendant has not acted in a manner contrary to any obligations owed to his former employer. That said — and based upon the representations of each party's counsel to the undersigned ___, defendant will be enjoined from acting in manner which takes, discloses or uses plaintiff's confidential or proprietary information, will be enjoined from soliciting the employment of plaintiff's employees and will be enjoined from otherwise violating any written agreements he has made with plaintiff. Moreover and because there has been no request for the posting of a security bond pursuant to FRCvP 65(c), this Court will not require that one be posted. With regard to enjoining defendant from working in sales at Onex, such relief will not be ordered at this time.
The standards for granting such an injunction are plain. Plaintiff must show (1) that it will suffer irreparable harm if the injunction does not issue and (2) "either (a) a likelihood of success on the merits or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation and a balance of hardships tipping decidedly in its favor." Warner-Lambert Co. v. Northside Development Corp., 86 F.3d 3, 6 (2d Cir. 1996). Inasmuch as the undersigned finds that plaintiff has not shown how it will be irreparably harmed in the absence of an order enjoining defendant from working in sales at Onex, this portion of plaintiff's application for an injunction will be denied.
It should be noted that where, as arguably is the case here, the issuance of an injunction will alter, rather than maintain, the status quo, such injunction will issue "only upon a clear showing that the moving party is entitled to the relief requested, or where extreme or very serious damage will result from a denial of preliminary relief." Abdul Wali v. Coughlin, 754 F.2d 1015, 1025 (2d Cir. 1985). Nevertheless and because plaintiff cannot demonstrate its entitlement to such injunction under the more "lenient" standards, no further discussion of whether a more stringent standard can be met is required.
Irreparable harm is harm that is neither remote nor speculative but actual and imminent and cannot be adequately compensated by an award of monetary damages. Shapiro v. Cadman Towers, Inc., 51 F.3d 328, 332 (2d Cir. 1995). Mere speculation that there is a possibility that plaintiff may in some unproved way suffer loss or damage is insufficient. See Jack Kahn Music Co. v. Baldwin, 604 F.2d 755, 759 (2d Cir. 1979). The materials proffered for this Court's review establish only that, assuming defendant to be in breach of the Employment Agreement by working in sales for Onex, plaintiff's losses will, in all likelihood, be measured in terms of lost income and, given competent proof, such measurement is not beyond the ability of a factfinder to calculate. Moreover and to the extent that such injury is premised on the loss of goodwill, no evidence has been presented establishing such loss and the mere loss of some business alone is insufficient to establish irreparable harm. See Ivy Mar Co., Inc. v. C.R. Seasons Ltd., 907 F. Supp. 547, 565-566 (E.D.N Y 1995). Consequently and because plaintiff has failed to show, beyond mere speculation or conjecture, how it will be irreparably harmed in the absence of an order enjoining defendant from working in sales at Onex, such an order will not issue.
Accordingly, it is hereby ORDERED that, except insofar as plaintiff seeks an order enjoining defendant from working in sales at Onex, plaintiff's motion is granted.