Defendant admits to having acted as an agent of the plaintiff in providing stenographic services for a deposition. The record, however, contains conflicting evidence as to whether the defendant actively solicited the business or was, instead, approached by the attorney who ultimately hired him, and whether or not that attorney intended to hire the defendant individually or as an employee of plaintiff. Accordingly, there are issues of fact precluding summary judgment on the question of whether or not the defendant violated his duty not to compete with the plaintiff while still in the plaintiff's employment (Catalogue Serv. v Wise, 63 A.D.2d 895).
Concur — Sullivan, J.P., Milonas, Rosenberger, Ross and Smith, JJ.