Full opinion text
OPINION AND ORDER J. PAUL OETKEN, District Judge. Plaintiff Judy Poller brought this declaratory judgment action against her former employer, BioScrip, Inc. (“BioScrip”), seeking a judgment declaring invalid and unenforceable a certain portion of the Restrictive Covenant Agreement (“RCA”) between the parties. BioScrip counterclaimed, asserting eleven claims against Poller and her new employer, third — party defendant American Outcomes Management, Inc. (“AOM”). AOM also asserts a counterclaim against BioScrip. Before the Court are Poller’s motion for summary judgment on her declaratory judgment claim, Poller and AOM!s motion for summary judgment on BioScrip’s counterclaims, and BioScrip’s motion for summary judgment on Poller’s claim, three of its own counterclaims, and AOM’s counterclaim. For the reasons that follow, the motions are granted in part and denied in part. I. Background A. Factual Background BioScrip is a company that provides pharmaceutical products and services across the United States. One such service is so-called “chronic care,” whereby patients receive various long-term treatments, often administered in their homes. BioScrip’s chronic care business centers on intravenous immunoglobulin therapy (“IVIG”). IVIG is a blood product, containing immunoglobulin antibody, which is administered intravenously or subcutaneously, and is generally used in the treatment of patients suffering from neurological or immune deficiencies, or those receiving organ transplants. Poller was a salesperson for the chronic care aspect of BioScrip’s business, and the bulk of her work involved IVIG. AOM, a private company run by oncology physician Samuel Jampolis, also provides home infusion services, meaning the intravenous injection of medications, and primarily serves patients in New York, New Jersey, and Connecticut. AOM’s home infusion services also focus on chronic care, and the principal home infusion service provided by AOM is IVIG, comprising 84% of AOM’s business. Both AOM and BioScrip rely on salespersons, like Poller, to develop referral sources— primarily doctors — who, in turn, refer patients for chronic care. Poller, currently a salesperson at AOM, has worked in the home infusion industry for over 18 years, and has been involved in pharmaceutical sales for over 24 years. Throughout her career, Poller has developed relationships with referral sources, primarily doctors, in the IVIG therapy industry. And while Poller asserts that she formed many of these relationships prior to joining BioScrip, BioScrip contends that no fewer than 85% of Poller’s referral sources represent relationships that she developed after joining BioScrip. In April 2002, Poller began work with ADIMA Scrip Solutions, whose then-parent — MIM Corporation — changed its name to BioScrip in 2005. Prior to her resignation in March 2011, Poller had worked for BioScrip as a salesperson for nine years, as an at-will employee. As a salesperson, she received commissions based on patient numbers and therapy sessions. BioScrip’s Strategic Business Units President, Michael Saraceo, notes that “[a]s a long-term Sales Representative[,] Poller represented over $12 million in revenue to BioScrip in the geographic region of New York and Long Island.” Saracco also contends that this revenue was generated by service to fewer than 200 patients. Accordingly, given the small number of patients and limited number of prescribing physicians, all parties agree that successful chronic care representatives, such as Poller, tend to be familiar with the treating doctors and nurses. As a chronic care sales representative for BioScrip, Poller reached out to physicians who had patients requiring home infusion services and then would relay to BioScrip information obtained from doctors regarding to patients for whom IVIG would be provided in the home. While Poller claims that she identified all of her referral sources through publicly available information, such as medical directories in the New York City area, phone books, and internet searches, BioScrip contends that referral source information is identified through a variety of channels, some public and others not. In January 2009, BioScrip provided Poller with the RCA, which conditioned future employment with BioScrip on acceptance of its terms. (Ex. B-2 “Your acceptance of the terms of this RC Agreement is a condition of your initial or continued employment with the Company.”). Whereas Poller states that she was threatened with termination by BioScrip and pressured into signing the agreement, BioScrip claims that no one threatened Poller, that she possessed the agreement for several months before signing it, and that she reviewed its contents with her attorney. In any event, Poller did sign the RCA on April 8, 2009. The RCA included, inter alia, a Covenant Against Competition, which provided, in pertinent part: (1) a restriction on competition prohibiting Poller from participating in any “competing activities” in her territory for a period of one year with “competing activities” defined as “any activities that are the same as or similar in function or purpose to those you performed or supervised performance of on behalf of [BioScrip] in the two year period preceding your termination if such activities are being undertaken for the benefit of a business ... that provides a product or service that would disclose one or more of [BioScrip’s] business opportunities ....”; and (2) a restriction on customer and employee solicitation, barring Poller from soliciting BioScrip customers, clients, or referral sources, during a period of two years following termination, “for the purpose of inducing or helping the Covered Customer to cease or reducing doing business for [BioScrip] or for the purpose of diverting business opportunities away from [BioScrip].” (Ex. 3 at ¶ 3.) The RCA also included a provision relating to confidential information, prohibiting Poller from using for' her own “benefit or for the benefit of others ... all confidential and proprietary-matters relating to [BioScrip] and the Business learned by [Poller]” during her employment. (Id. at ¶ 4.) The RCA defined confidential information as, inter alia: Information or compilations of information with respect to (i) the strategic plans, budgets, forecasts, intended expansions of product, service or geographic markets of the Company, (ii) sales figures, contracts, agreements, and undertakings with or with respect to customers, (iii) profit or loss figures, and (iv) customers, clients, suppliers, sources of supply and customer lists, and shall not disclose such Confidential Information to anyone outside of the company except with the Company’s express written consent and except for Confidential Information which is at the time of receipt or thereafter becomes publicly known through no wrongful act of you or is received from a third party no under an obligation to keep such information confidential and without breach of this RC Agreement. (Id.) In February 2011, Poller met with AOM director, Dr. Jampolis, to discuss joining AOM. At that meeting, Poller told Dr. Jampolis that she planned to leave BioScrip, and engaged in a negotiation concerning her level of compensation. All parties agree that Dr. Jampolis told Poller that he thought AOM could address Plaintiffs compensation needs. On Thursday, March 4, 2011, AOM’s attorneys, on Poller’s behalf, filed — but did not serve on BioScrip— her declaratory judgment action against BioScrip in New York state court. (Ex. 1.) Also on March 4, Poller signed an employment agreement with AOM, although the “effective” date of the agreement was listed as March 7, 2011. (Ex. E-3.) This agreement includes an indemnification provision, by which AOM agrees to indemnify and hold harmless Poller for all liabilities arising from her “immediately preceding employer, BioScrip, Inc.” (Id. at ¶ 9.) These obligations are wholly associated with Poller’s “non-competition agreement and/or claims relating to the solicitation of clients, employees or business from Employee’s immediately preceding employer.” (Id.) Additionally, the AOM-Poller employment agreement includes a provision entitling Poller to her base salary of $160,000, even in the event of an injunction barring Poller from working for AOM. (See id.; id. at ¶ 3.) Poller prepared and signed a resignation letter to BioScrip on March 4, 2011, and she sent the letter to BioScrip by Federal Express on March 5, for delivery on Monday, March 7. Poller told one individual at BioScrip — the employee who handled her intake — about her departure on Sunday, March 6, 2011, but other than that, no one at BioScrip was aware of her departure until receiving her resignation letter on Monday, March 7. It is undisputed that, over the course of the weekend of March 4-6, 2011, and during the week prior, Poller sent various work-related documents to her personal email account. While BioScrip asserts that this correspondence was for the purpose of utilizing the information in her new position at AOM, Poller contends that she frequently sent information to her personal email, as it was easier to work on her home computer, as opposed to her BioScrip-issued laptop. Poller notes that her direct supervisor, Sal Ralinelli, in fact had authorized the routine transfer of work-related documents to her home computer to facilitate printing. BioScrip also contends that, in addition to the transfer of BioScrip-related information to her personal email, Poller downloaded information from her BioScrip laptop to a USB portable drive and “cleaned” her BioScrip computer, deleting tens of thousands of files, before returning it to BioScrip. Poller disputes this characterization, arguing instead that she merely attempted to delete personal matters, such as pictures from her 60th birthday, from the laptop. Regardless of the nature and content of these transfers and deletions, all parties agree that (1) Poller’s last day at BioScrip was Friday, March 4, 2011, and (2) some emails to Poller’s personal account were sent over the course of that weekend, before BioScrip had notice of her departure, which occurred on Monday, March 7, 2011. B. Procedural Background Poller filed this action in New York County Supreme Court on March 4, 2011, and BioScrip removed the case to the Southern District of New York on March 10. (Dkt. No. 1.) BioScrip next filed an Order to Show Cause, seeking to enjoin Poller from competing directly or indirectly with BioScrip’s business. (Dkt. No. 3.) After briefing and argument, Judge Deborah Batts denied BioScrip’s motion for a preliminary injunction. (Minute Entry, Mar. 22, 2011.) On April 22, 2011, BioScrip filed a Third-Party Complaint against AOM (Dkt. No. 25), and, on April 27, 2011, BioScrip answered Poller’s Complaint, asserting 11 counterclaims against Poller and AOM (Dkt. No. 24). BioScrip amended its counterclaims on May 12, 2011 (Dkt. No. 26), and Poller and AOM answered BioScrip’s amended counterclaims on June 16, 2011 (Dkt. Nos. 31, 32). Also on June 16, AOM counterclaimed against BioScrip. (Dkt. No. 31.) BioScrip answered AOM’s counterclaim on July 5, 2011. (Dkt. No. 33.) After pursuing settlement with Magistrate Judge Cott, Poller and AOM filed a motion for summary judgment on January 11, 2013. (Dkt. No. 66.) BioScrip opposed this motion and cross-moved for summary judgment on February 8, 2013. (Dkt. Nos. 74-75.) Poller and AOM filed a joint opposition and reply on March 7, 2013 (Dkt. No. 80), and BioScrip did the same on April 5, 2013 (Dkt. No. 84.) II. Summary Judgment Standard A court may grant a motion for summary judgment only when all of the parties’ submissions, read together, reveal that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009). “The moving party bears the burden of proving that there is no genuine [dispute] of material fact.” Read v. Town of Suffern Police Dep’t, No. 10 Civ. 9042(JPO), 2013 WL 3193413, at *3 (S.D.N.Y. June 25, 2013) (citing Zalaski v. City of Bridgeport Police Dep’t., 613 F.3d 336, 340 (2d Cir.2010)). The court must construe all facts, and resolve all ambiguities, in the non-movant’s favor. Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir.2011). A fact is “material” only if it will affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Where no facts exist “from which a reasonable inference could be drawn in favor of the non-moving party on a material issue of fact,” summary judgment is appropriate. Catlin v. Sobol, 93 F.3d 1112, 1116 (2d Cir.1996). Courts are required to deny a motion for summary judgment “where reasonable jurors could disagree as to the proper result.” Read, 2013 WL 3193413, at *3. Nevertheless, “[t]he mere existence of a scintilla of evidence in support of the plaintiffs position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson, 477 U.S. at 252, 106 S.Ct. 2505. III. Discussion In its Answer (Dkt. Nos. 24, 26), BioScrip asserted the following counterclaims: breach of contract (non-competition) (“Count I”); breach of contract (non-disclosure) (“Count II”); breach of fiduciary-duties (“Count III”); breach of duty of loyalty (“Count IV”); violation of the Computer Fraud and Abuse Act (“Count V”); unfair competition, also against AOM (“Count VI”); misappropriation, also against AOM (“Count VII”); unjust enrichment, also against AOM (“Count VIII”); interference with contractual relations and prospective business advantage, also against AOM (“Count IX”); and violation of New York’s General Business Law § 349, also against AOM (“Count X”). Additionally, BioScrip seeks permanent injunctive relief against Poller and AOM. In turn, AOM filed a counterclaim against BioScrip for unfair competition. Poller and AOM have moved for summary judgment on Poller’s original declaratory judgment claim, as well as on all of BioScrip’s counterclaims. BioScrip has cross-moved for summary judgment on Poller’s declaratory judgment claim, Counts I, II, and VI, and has moved for summary judgment on AOM’s counterclaim. The Court addresses each claim in turn. A. Enforceability of the RCA and Breach of Contract (Counts I and II) Poller’s declaratory judgment action and BioScrip’s counterclaims for breach of contract derive from the terms of the RCA. Central to these claims is the enforceability of the RCA’s restrictions. Poller argues that the RCA is unenforceable because it fails to reasonably protect BioScrip’s legitimate interests when applied to Poller, as required by law. In response, BioScrip contends that the agreement is narrowly tailored to protect its valid business interests and fails to impose an undue hardship on Poller. Additionally, BioScrip argues that the undisputed facts demonstrate that Poller violated the terms of the RCA. As discussed, the RCA includes non-compete, non-solicitation, and non-disclosure provisions. These provisions present distinct issues. 1. Legitimate Business Interests As a general rule, “New York courts adhere to a strict approach to enforcement of restrictive covenants because their enforcement conflicts with the general public policy favoring robust and uninhibited competition, and powerful considerations of public policy which militate against sanctioning the loss of a man’s livelihood.” Kelly v. Evolution Markets, Inc., 626 F.Supp.2d 364, 371 (S.D.N.Y.2009) (citation omitted). Accordingly, “[a]n employee agreement not to compete will be enforced only if ‘it is reasonable in time and area, necessary to protect the employer’s legitimate interests, not harmful to the general public and not unreasonably burdensome to the employee.’ ” Scott, Stackrow & Co., C.P.A.’s, P.C. v. Skavina, 9 A.D.3d 805, 806, 780 N.Y.S.2d 675 (3d Dep’t 2004) (citations omitted); accord BDO Seidman v. Hirshberg, 93 N.Y.2d 382, 388-89, 690 N.Y.S.2d 854, 712 N.E.2d 1220 (1999) (“A restraint is reasonable only if it: (1) is no greater than is required for the protection of the legitimate interest of the employer, (2) does not impose undue hardship on the employee, and (3) is not injurious to the public.” (citations omitted) (emphasis in original)); Elite Cleaning Co., Inc. v. Capel, Civ. A. No. 690-N, 2006 WL 1565161, at *8 (Del. Ch. June 2, 2006) (“Under Delaware law, the courts will not enforce a noncompetition agreement ‘that is more restrictive than an employer’s legitimate interests justify or that is oppressive to an employee.’ ” (footnote omitted)). With respect to the first prong of this reasonableness analysis, an employer’s “legitimate” interests include: (1) the protection of trade secrets; (2) where the employer is exposed to “special harm” due to the “unique” nature of an employee’s services; or (3) the goodwill of an employer’s business. See Ken J. Pezrow Corp. v. Seifert, 197 A.D.2d 856-57, 602 N.Y.S.2d 468 (4th Dep’t 1993). “[A] trade secret is ‘any formula, pattern, device or compilation of information which is used in one’s business, and which gives him an opportunity to obtain an advantage over competitors who do not know or use it.’ ” Softel, Inc. v. Dragon Med. & Scientific Commc’ns, Inc., 118 F.3d 955, 968 (2d Cir.1997) (applying New York law) (quoting Restatement of Torts § 757 cmt. b, at 5 (1939)). Courts examine several factors in determining whether information rises to the level of a trade secret, including: (1) the extent to which the information is known outside of the business; (2) the extent to which it is known by employees and others involved in the business; (3) the extent of measures taken by the business to guard the secrecy of information; (4) the value of the information to the business and its competitors; (5) the amount of effort or money expended by the business in developing the information; and (6) the ease or difficulty with which the information could be properly acquired or duplicated by others. Unisource Worldwide, Inc. v. Valenti, 196 F.Supp.2d 269, 278 (E.D.N.Y.2002) (citing N. Atl. Instruments, Inc. v. Haber, 188 F.3d 38, 44 (2d Cir.1999)). With respect to customer lists and information associated with customer preferences, even where some of that information may be publicly available, courts have held that “where a company’s customers are not readily ascertainable, but must be cultivated with great effort and secured through the expenditure of considerable time and money, the names of those customers are [protectable] trade secrets.” Tactica Int’l, Inc. v. Atl. Horizon Int’l, Inc., 154 F.Supp.2d 586, 606 (S.D.N.Y.2001) (quotations and citations omitted). Nevertheless, “a former employee may not be enjoined from soliciting his or her former employer’s customers where the names and addresses of potential customers are readily discoverable through public sources.” Ivy Mar Co. v. C.R. Seasons Ltd., 907 F.Supp. 547, 557 (E.D.N.Y.1995) (citations omitted); but see Haber, 188 F.3d at 46 (“Numerous cases applying New York law have held that where, as here, it would be difficult to duplicate a customer list because it reflected individual customer preferences, trade secret protection should apply.” (citations omitted)). In parsing the customer list issue, courts examine whether the solicitation of an employer’s customers constitutes the “product of casual memory” or coincidence, as opposed to “a physical taking or studied copying,” characterizing the latter as “not necessarily [ ] a violation of a trade secret, but as an egregious breach of trust and confidence while in plaintiffs’ service.” Leo Silfen, Inc. v. Cream, 29 N.Y.2d 387, 392, 328 N.Y.S.2d 423, 278 N.E.2d 636 (Ct.App.1972) (citations omitted). Generally however, the sine qua non of whether a customer list constitutes a trade secret lies in whether “the customers are readily ascertainable outside the employer’s business as prospective users or consumers of the employer’s services or products,” or, by contrast, “the customers are not known in the trade or are discoverable only by extraordinary efforts [and the] customers’ patronage had been secured by years of effort and advertising effected by the expenditure of substantial time and money.” Id. at 392-93, 328 N.Y.S.2d 423, 278 N.E.2d 636. Whereas the former circumstance will not support trade secret protection, in the latter situation, “courts have not hesitated to protect customer lists and files as trade secrets.” Id. (citations omitted); see also Integrated Cash Mgmt. Servs., Inc. v. Digital Transactions, Inc., 920 F.2d 171, 173 (2d Cir.1990) (“[A] trade secret can exist in a combination of characteristics and components, each of which, by itself, is in the public domain, but the unified process, design and operation of which, in unique combination, affords a competitive advantage and is a protectable secret.” (quoting Imperial Chem. Indus. Ltd. v. National Distillers and Chem. Corp., 342 F.2d 737, 742 (2d Cir.1965) (quotations and citation omitted))). With regard to the second way in which an employer’s interests may legitimately sustain a non-compete clause, such as the one at issue here, courts recognize employers’ viable interests in protecting themselves from “competition by a former employee whose services are unique or extraordinary.” BDO Seidman, 93 N.Y.2d at 389, 690 N.Y.S.2d 854, 712 N.E.2d 1220 (citation omitted). “[T]he question of whether one’s services are unique is case-specific,” USI Ins. Servs. LLC v. Miner, 801 F.Supp.2d 175, 189 (S.D.N.Y.2011), and the crux of the inquiry is whether the services rendered by a given employee are “not simply of value to the employer, but [] may also truly be said to be special, unique or extraordinary,” Ticor Title Ins. Co. v. Cohen, 173 F.3d 63, 70 (2d Cir.1999). Such unique services tend to be found in “categories of employment where the services are dependent on an employee’s special talents,” such as “musicians, professional athletes, actors and the like.” Id. The Ticor court went on to discuss cases where unique services had previously been found, such as where an acrobat performed a specific act or where a journalist wrote feature articles for the daily press. Id. at 71. And while it is not required that an employee “should be the only ‘star’ of his employer, or that the business will grind to a halt if the employee leaves,” id., being of key import or value will not automatically render one’s services unique within the meaning of this limited exception. See, e.g., DataType Int’l, Inc. v. Puzia, 797 F.Supp. 274, 283 (S.D.N.Y.1992) (“It cannot be said that DataType is exposed to special harm because of the unique nature of Puzia’s services. Puzia is a salesman. To be sure, he is a very good salesman; but there is nothing unique about the nature of his services.”). Finally, “[e]ven where ... there is no showing that a former employee has obtained a competitive advantage through the misappropriation of confidential customer information or that the employee possessed unique or extraordinary abilities, the employer retains ‘a legitimate interest in preventing former employees from exploiting ... the goodwill of a client or customer, which had been created and maintained at the employer’s expense, to the employer’s competitive detriment.’ ” Scott, Stackrow & Co., 9 A.D.3d at 806, 780 N.Y.S.2d 675 (quoting BDO Seidman, 93 N.Y.2d at 392, 690 N.Y.S.2d 854, 712 N.E.2d 1220). This employer interest, however, will not be construed as legitimate if the covenant “seeks to bar the employee from soliciting or providing services to clients with whom the employee never acquired a relationship through his or her employment or if the covenant extends to personal clients recruited through the employee’s independent efforts.” Id. (citation omitted). Here, BioScrip asserts that all three of the aforementioned legitimate interests are met, contending that (1) the information Poller sent to her personal email account constituted trade secrets; (2) Poller’s qualities as a salesperson rendered her services unique; and (3) Poller absconded with BioScrip’s goodwill, exploiting it on behalf of her new company, AOM. By contrast, AOM argues that (1) the information obtained by Poller was not protectable as a trade secret; (2) Poller is not a “unique” employee in the legal sense; and (3) the overbreadth of the agreement nullifies any legitimate interest it may have in protecting BioScrip’s customer goodwill. As noted, in determining whether material warrants trade secret protection, New York courts examine several factors, including the way in which the information was treated, compiled, and accessed within a given business. And while customer lists do not necessarily trigger trade secret protection, where information is procured at great expense and effort by an employer, and includes non-public aspects that are not easily replicated, trade secret protection may attach. See, e.g., Ivy Mar Co., 907 F.Supp. at 556-57 (“[W]here a company’s customers are not readily ascertainable, but must be cultivated with great effort and secured through the expenditure of considerable time and money, the names of those customers are protectible trade secrets.” (citations omitted)). BioScrip has raised an issue of material fact as to whether compilations of its referral sources (generally, doctors or nurses), together with corresponding patient names, treatments, dosages, insurance information, hospitals, and territory area are protectable as trade secrets. Poller and AOM highlight the publicly available nature of doctors’ names in defending the accessible nature of the materials at issue, contending that such availability eliminates the possibility of trade secret protection. See, e.g., Haber, 188 F.3d at 44 (“The Magistrate Judge concluded that the list of companies to whom North Atlantic’s TMI division sold was not a trade secret. In this respect, the Magistrate Judge found that North Atlantic had not proven that such a list ‘could not have been developed by reviewing, among other public sources, trade publications available to anyone who availed himself or herself [of] such reference.’ ”); see also Gemmy Indus. Corp. v. Chrisha Creations Ltd., No. 04 Civ.1074 (RWS), 2004 WL 1406075, at *12 (S.D.N.Y. June 23, 2004), vacated and remanded, 452 F.3d 1353 (Fed.Cir.2006) (“Price lists, product samples and ‘marketing plans’ are all items that are not, as a matter of law, protected as trade secrets.” (citations omitted)). While practitioner information is certainly publicly available, the onerous compilation of that information, through the expenditure of time, money, and labor, and subsequent pairing of that information with patient records, preferences, and needs could indeed rise to the level of a trade secret. See Haber, 188 F.3d at 45 (“By contrast, the Magistrate Judge determined that the identities of individual contact people with whom Haber dealt while at North Atlantic or TMI were protectable trade secrets. The Magistrate Judge began his analysis for this second conclusion by determining that information on specific contact people was ‘not readily available’ to others in the industry. That is, Haber generated the list of specific contact people-the people who required the customized technology produced by TMI and North Atlantic’s TMI division-over the fifty years he had worked in the industry, more than half of which he spent at TMI.” (emphasis in original)). Here, BioScrip has raised a triable issue of fact as to the manner in which records of referral sources and patients were obtained, developed, and maintained — and, consequently, as to the effort expended in doing so. For example, Saracco explained in his deposition that BioScrip would help its salespersons “identify the specialists in a territory, because there’s a very narrow group of specialty kinds of doctors that would prescribe these therapies.” (Ex. 41, at 81:11-14.) Saracco also noted that BioScrip itself would sometimes purchase information on specialties, purchase physician lists, or pay to attend national meetings or conferences as a way in which to contact practitioners. (Id. at 81:18-82:19.) Moreover, even though such conferences or physician lists might be available to BioScrip’s competitors through similar avenues, BioScrip expended time, money, and effort in obtaining those lists, cultivating relationships with given doctors, and creating databases that listed information such as “customer files, customer referrals, revenue, profitability, margin analysis, therapy — specific reports for drug— prescribed type of access — in the case of IVIG, whether it’s intravenous IVIG or subcutaneous — the names of the referral sources, the managed care contract that applies to each of the patients, our pricing.” (Id. at 77:18-78:4 (Saracco discussing his conception of the meaning of “confidential information” as defined in the RCA).) Poller herself admits that on a given compilation of a sales commission report that includes — in addition to a doctor or nurse’s name as a referral source — a patient’s name, when a patient started, was billed, and began service, together with a doctor revenue code, therapy type, revenue class, nursing type, and total associated revenue, nothing other than the referring practitioner’s name is public. (See Ex. 37, 278:3-21 (discussing Ex. 15).) AOM and Poller argue that since all of the confidential patient information could have been gleaned from approaching doctors or other practitioners through publicly available sources, it is, a fortiori, nonprotectable as a trade secret. Moreover, they add that to the extent that such compilations reflect patient preferences or statuses, such information could constitute “remembered information,” which, even where it reflects “specific needs and business habits of particular customers!,] is not confidential.” Tactica Int’l, 154 F.Supp.2d at 607 (quoting Catalogue Serv. of Westchester, Inc. v. Henry, 107 A.D.2d 783, 784, 484 N.Y.S.2d 615 (2d Dep’t 1985) (quotations and citations omitted)); see also Levine v. Bochner, 132 A.D.2d 532, 533, 517 N.Y.S.2d 270 (2d Dep’t 1987) (“The use of information about an employer’s customers which is based on casual memory is not actionable.” (citation omitted)). BioScrip, however, has raised a triable issue of fact on the manner in which such information was gathered, the effort expended in doing so, and the resultant value of the compilation thereof. See Defiance Button Machine Co. v. C & C Metal Products Corp., 759 F.2d 1053, 1063 (2d Cir.1985) (“A customer list developed by a business through substantial effort and kept in confidence may be treated as a trade secret and protected at the owner’s instance against disclosure to a competitor, provided the information it contains is not otherwise readily ascertainable.” (citations omitted)). Accordingly, just because referral sources may be found through public channels does not negate the effort potentially expended in cultivating those sources. Moreover, if the cited exhibits are any indication, the status of a given patient, as associated with a given doctor, within a list of hundreds, may not be the product of “casual memory” as Poller and AOM argue. Additionally, BioScrip has raised an issue of material fact as to the treatment of such information as confidential within the company. (See, e.g., Ex. 37, at 330:20-331:9 (Poller discussing how she was the only person with access to her particular referral and patient list and noting its password protection); Ex. 42, at ¶ 20 (noting that “substantial measures” are taken by BioScrip to keep its “confidential information concerning its customers and referral sources secret”).) Thus, BioScrip has raised a genuine issue of material fact as to whether its information concerning patients, referral sources, and treatments, constitutes a trade secret, as the record reflects that (1) the compilation of the information is largely specific to the home infusion business; (2) only certain employees have access to the customer files, records, and insurance information cited by Saracco as confidential; (3) BioScrip secured said information on a password-protected database; (4) the information, as compiled, in the hands of competitors very well may constitute a expeditious, surefire way to target referral sources; (5) BioScrip expended time, labor, and money in developing the compilation of referral sources; and (6) the information, while in some ways publicly available in the sense that practitioner names are public, is not necessarily easily duplicable or attainable in the form that BioScrip maintains it. See, e.g., DoubleClick Inc. v. Henderson, No. 116914/97, 1997 WL 731413, at *4-5 (N.Y.Sup.Ct. Nov. 7, 1997) (discussing the Restatement of Torts, § 757, comment b factors applied by New York courts in determining whether information is worthy of trade secret protection). And while AOM and Poller argue that if the information is proprietary or confidential, it is confidential to the HIPAA-protected patients, but not to BioScrip, these two categories are not necessarily mutually exclusive. While the information concerning patient treatment and insurance information is surely confidential to those patients implicated, this fact does not negate the potential proprietary interest BioScrip may have “in safeguarding that which has made [its] business successful and to protect [itself] against deliberate surreptitious commercial piracy.” Reed, Roberts Associates, Inc. v. Strauman, 40 N.Y.2d 303, 308, 386 N.Y.S.2d 677, 353 N.E.2d 590 (Ct.App.1976). Accordingly, BioScrip may have a legitimate interest in maintaining its trade secrets, which may in turn justify the RCA. BioScrip also advances alternative justifications for the RCA: namely, (1) that Poller is a “unique” employee, who, as a professional, provides extraordinary services and (2) the protection of the goodwill of BioScrip’s business, which is inextricably tied to its relationships with its referral sources and patients. As for the first of these additional justifications, while Poller is clearly a highly successful salesperson, her services are not unique or extraordinary in the way in which an artisan’s or performer’s services may be; instead, they are merely of “high value” to her employer. See Quandt’s Wholesale Distributors, Inc. v. Giardino, 87 A.D.2d 684, 684, 448 N.Y.S.2d 809 (3d Dep’t 1982) (“Nothing more is claimed by plaintiff than that defendant Giardino was a very effective and well-trained salesman, familiar with plaintiffs customers and business methods. This may tend to establish that he was ‘of high value to his employer’; it does not establish his services as unique.” (quotations and citation omitted)). Therefore, Poller’s so called “unique” ability to cultivate referral sources is not unique in the legal sense, and thus, does not constitute a legitimate interest that could justify the RCA. As for BioScrip’s interest in its referral sources and patients’ goodwill, the “desire to protect its goodwill that it fostered with customers constitutes a legitimate business interest.” Kelly, 626 F.Supp.2d at 372 (citation omitted). In many ways, “the goodwill of the salesman’s relationship with the customer is to a degree an asset of the employer.” Ecolab, Inc. v. K.P. Laundry Mach., Inc., 656 F.Supp. 894, 899 (S.D.N.Y.1987). For example, even where the goodwill is developed by the salesperson, that development “is done for the benefit of the employer under a duty of loyalty and in return for compensation paid to the salesman by the employer.” Id. Where, as here, the salesperson develops continuous relationships over the course of working for an organization, those longstanding relationships “can be reasonably viewed as legitimate property interests of the employer which are entitled to contractual protection so long as the protective contracts are of reasonable scope.” Id. In sum, although Poller's success as a salesperson does not render her “unique” in the sense that her value could justify the non-compete and non-solicitation aspects of the RCA, BioScrip’s interest in maintaining what are potentially protectable trade secrets and its customer goodwill are both legitimate. It is axiomatic, however, that non-compete clauses and nonsolicitation provisions, even where protecting legitimate interests, must be reasonably limited both temporally and geographically in order to withstand judicial scrutiny, as reasonableness will not be found where restrictive covenants act to unreasonably limit trade and burden an individual’s livelihood. See Employment Law, Practitioner Treatise Series, Vol. 2, § 8.9 (2009 4th Ed.) (“A covenant not to compete must be reasonable in duration, activity, and geographic limits in order to be enforceable.”). Here, the non-compete portion of the RCA purported to limit Poller from selling or participating in the sale of IVIG products for one year in her “Territory,” with that territory defined as the New York Metropolitan Area, including Bronx, Kings, New York, Queens, and Richmond counties, and Long Island, constituting Nassau and Suffolk counties. This restriction was to remain in place for one year. Courts have routinely held that limitations of one year, when coupled with corresponding geographic limitations, can be reasonable. See, e.g., BDO Seidman, 93 N.Y.2d at 393, 690 N.Y.S.2d 854, 712 N.E.2d 1220 (upholding a restraint limiting Defendant from serving BDO clients for 18 months in the limited geographic area of Buffalo as reasonable); Battenkill Veterinary Equine v. Cangelosi, 1 A.D.3d 856, 858, 768 N.Y.S.2d 504 (3d Dep’t 2003) (upholding three-year, 35-mile restriction on practicing equine veterinary medicine where the geographical restriction was narrower than veterinarian’s service area and the covenant only prohibited her from practicing her specialty, rather than from practicing at all); Mattern & Associates, L.L.C. v. Seidel, 678 F.Supp.2d 256, 266 (D.Del.2010) (“The court notes at the outset the reasonable nature of the 100-mile geographic limitation and two-year duration imposed upon Seidel by this provision.” (footnote omitted)). Here, as BioScrip points out, Poller is not prohibited by the non-compete clause from working in a similar capacity for AOM as she did for BioScrip; she is prohibited from doing so only within New York and Long Island. AOM also provides services in New Jersey and Connecticut; Poller therefore presumably could have competed with BioScrip in those markets during the one-year prohibition period. Accordingly, as the non-compete aspect of the RCA is limited in duration and geographic scope, it is a reasonable limitation given the legitimate business interests BioScrip maintained in its confidentiality and information potentially protectable as a trade secret. Second, the RCA also purports to limit Poller’s ability to solicit any employee or contractor from leaving BioScrip, or engage in any business-related communication or solicitation for the purpose of inducing a BioScrip customer to cease doing business with BioScrip or displacing BioScrip as a service provider. While courts have recognized the legitimate interest that companies maintain in safeguarding their good will — an interest that may properly be safeguarded through a reasonable non-solicitation provision in an RCA — such provisions will be “considered overbroad if the former employee had not personally served those customers before and if the individual had never represented the firm’s goodwill to those customers.” Employment Law, Practitioner Treatise Series, § 8.10 (footnotes omitted). Moreover, “[a] restriction also may not include customers who were served outside the employee’s period of employment.” Id,.; accord Scott, Stackrow & Co., 9 A.D.3d at 806, 780 N.Y.S.2d 675 (“A covenant will be rejected as overly broad, however, if it seeks to bar the employee from soliciting or providing services to clients with whom the employee never acquired a relationship through his or her employment or if the covenant extends to personal clients recruited through the employee’s independent efforts.” (citation omitted)). Here, though limited temporally to 24 months, the non-solicitation aspect of the agreement purports to prohibit Poller from soliciting any BioScrip client or referral source, regardless of whether her relationship with that client predates her employment with BioScrip. This type of over-breadth is disfavored by courts, especially given the vital employee interests associated with establishing a livelihood. Where courts find restrictions to be unreasonable, however, they may “blue pencil the covenant to restrict the term to a reasonable [ ] limitation, and grant partial enforcement for the overly broad restrictive covenant.” Unisource, 196 F.Supp.2d at 277 (quotations and citation omitted); see also BDO, 93 N.Y.2d at 395, 690 N.Y.S.2d 854, 712 N.E.2d 1220 (“The time and geographical limitations on the covenant remain intact. The only change is to narrow the class of BDO clients to which the covenant applies. Moreover, to reject partial enforcement based solely on the extent of necessary revision of the contract resembles the now-discredited doctrine that invalidation of an entire restrictive covenant is required unless the invalid portion was so divisible that it could be mechanically severed, as with a ‘judicial blue pencil.’ The Restatement (Second) of Contracts rejected that rigid requirement of strict divisibility before a covenant could be partially enforced. Thus, we conclude that severance is appropriate, rendering the restrictive covenant partially enforceable.” (internal citations omitted)). Here, in light of BioScrip’s aforementioned interest in maintaining client goodwill, the 24-month non-solicitation restriction may indeed be valid, if limited to those client-relationships that Poller developed while in BioScrip’s employ. See, e.g., USI Ins. Servs., 801 F.Supp.2d at 188 (rejecting argument that 24-month non-solicitation provision for insurance salesman was unreasonable and citing similar cases in insurance industry maintaining like 24-month restrictions). The Court will not, however, enforce the non-solicitation aspect as written, regardless of BioScrip’s legitimate interest in maintaining its goodwill, because to limit Poller from soliciting those clients she developed on her own, or before her employment with BioScrip, would be per se unreasonable. 2. Undue Hardship and Public Policy Even where a company’s interests are legitimate and reasonably protected by a restrictive covenant, courts will decline to enforce restrictive covenants where they impose an undue hardship or are deleterious to public policy — facts which Poller and AOM contend militate against enforcement here. Poller argues that because she is a 63-year-old woman who “has spent the majority of her professional life as an TVIG salesperson in the metropolitan New York area,” the RCA imposes an undue hardship. The Court disagrees. With the non-solicitation clause limited to those clients that Poller developed during her employment with BioScrip and the non-compete clause limited to the New York metropolitan area and temporally by one year, Poller is not unduly burdened. Even under the terms of the agreement, she is not precluded from selling IVIG in New Jersey, Massachusetts, Connecticut, Rhode Island, and other neighboring states. Moreover, Poller could presumably solicit non-TVIG clients, provided that those clients were not those that she developed relationships with solely during her employment with BioScrip. Additionally, Poller repeatedly stated that many of the relationships with doctors she solicited at BioScrip predated her employment there. Accordingly the RCA’s solicitation limitations, so long as they are only applicable to those clients or referral sources developed exclusively at BioScrip, would not work to preclude Poller from earning a living. It is also undisputed that Poller’s current employment agreement with AOM includes a provision entitling Poller to her base salary of $160,000, even in the event of an injunction barring Poller from working for AOM at all. (Ex. E-3, at ¶ 9). Compare USI, 801 F.Supp.2d at 190 (“Although the parties do not specifically focus on undue hardship, as noted above, USI is not seeking to preclude Miner from working as an insurance producer for IOA. USI instead seeks only to preclude Miner from soliciting or servicing former USI clients. USI does note, however, that Miner’s employment agreement with IOA guarantees him a salary and an equity stake in the business. Accordingly, the Court finds that this prong favors USI.”), with Elite Cleaning, 2006 WL 1565161, at *8-9 (finding a two-year noncompetition agreement unenforceable where it restricted an “unskilled” worker’s ability to earn a living, despite the fact that his former employer’s interest in “disintermediation” was “minor” and the former employee had received “no specialized training,” was not “highly compensated,” and had “not been shown to have been trying to take business away from [his former employer] or to have caused that effect” (footnote omitted)). Thus, given its reasonable temporal limitations, Poller’s ability to sell IVIG in neighboring geographic areas, and the Court’s reading of the non-solicitation clause as limited to those clients with which Poller developed a relationship exclusively during her time at BioScrip, the RCA does not impose an undue hardship on Poller. AOM and Poller also assert that the RCA’s restraints are “injurious to the public given the nature of the business at issue,” namely, “the provision of home infusion therapy to patients with chronic illnesses.” (PL’s Mem. at 16.) According to Poller, enforcing the RCA would “curtail the options presented to doctors and patients with respect to their choice of home infusion therapy providers.” (Id.; see also Consolidated Memorandum of Law in Opposition to BioScrip, Inc.’s Cross-Motion, Dkt. No. 80 (“PL’s Rep.”), at 9 (“The true public policy question at issue here is patient choice. And the enforcement of the RCA against Poller would unduly crib [sic] a patient’s ability to .move to the provider of his or her choosing.”).) Poller and AOM fail to advance any argument as to how or why patient choice is curbed by one salesperson’s restriction. Presumably patients are always free to contact their doctors for a different home infusion referral if they are unhappy with their current provider and those doctors’ awareness of home infusion providers and alternatives cannot reasonably be construed as dependent on continuous contact with Poller. 3. Enforceability Finally, Poller and AOM present several additional arguments against enforceability, including the supposed “drastic reduction” in compensation that Poller suffered in the wake of the RCA’s imposition. Poller argues that changes to the conditions of her employment, in concert with the unilateral imposition of the RCA, constituted an exploitative action on BioScrip’s part, which took advantage of Poller’s lack of bargaining power as compared to that of her employer. First, Poller argues that BioScrip “dressed up” the RCA “with claims that it was offering continued employment and an additional week of severance in the event of termination,” a “sales pitch [that] was belied by the fact that BioScrip was simultaneously imposing a new compensation plan that drastically reduced Poller’s earnings.” (Pl.’s Mem. at 15.) Second, Poller argues that “changes in the terms and conditions of Poller’s employment after her execution of the RCA further militate against enforcement,” citing the aforementioned reduction in compensation, the introduction of a cross-selling initiative that Poller believed jeopardized her relationships with her referral sources, the discontinuance of employer matching within employees’ 401k plans, and an increase in healthcare premiums. In response, BioScrip notes that Poller was given months to review the RCA with her attorney — a time during which she interviewed for another job— and continued working for BioScrip for two years in the wake of the RCA’s imposition, constituting sufficient consideration for the agreement. (Memorandum of Law in Support of BioScrip, Inc.’s Cross Motion for Summary Judgment, Dkt. No. 71 (“Defi’s Mem.”), at 22.) First, the fact that a restrictive covenant agreement is a condition of future employment with a given company does not automatically render such an agreement coercive and unenforceable. See Ecolab, 656 F.Supp. at 898 (“The other defenses fail. The fact that the employment agreement with Ecolab was a condition of employment with Ecolab does not mean that those were coerced, unenforceable agreements.”). Moreover, an at-will employee’s continued employment can constitute sufficient consideration to support an enforceable contract. See, e.g., Zellner v. Stephen D. Conrad, M.D.P. C., 183 A.D.2d 250, 256, 589 N.Y.S.2d 903 (2d Dep’t 1992) (“Because in at-will employment the employer has the right to discharge the employee (or, as here, an independent contractor providing services under a similar arrangement), without cause, and without being subject to inquiry as to his or her motives forbearance of that right is a legal detriment which can stand as consideration for a restrictive covenant.” (citation omitted)); see also Gazzola-Kraenzlin v. Westchester Med. Grp., P.C., 10 A.D.3d 700, 702, 782 N.Y.S.2d 115 (2d Dep’t 2004) (“Under these circumstances, the plaintiffs continued employment by the defendant until December 31, 2002, constituted good and sufficient consideration for the restrictive covenants, notwithstanding the at-will nature of the employment relationship.” (citation omitted)); Research & Trading Corp. v. Powell, 468 A.2d 1301, 1305 (Del. Ch.1983) (“The Court finds there was sufficient consideration at the time of the signing of the covenant to support an enforceable restrictive covenant. Although Powell now alleges that the job was not as beneficial as he thought it would be, that type of argument will not defeat the validity of the covenant. Powell was told he would lose the position if he did not sign. It is inconsequential that the new position did not subsequently fulfill his expectations.”). Third, changes in compensation do not necessarily bar enforcement restrictive covenants. See, e.g., IDG USA, LLC v. Schupp, No. 10 Civ. 76S, 2010 WL 3260046, at *12 (W.D.N.Y. Aug. 18, 2010), vacated in part on unrelated grounds, 416 Fed.Appx. 86 (2d Cir.2011) (“There is no dispute that IDG reduced Schupp’s annual salary from that stated in the NCA. Schupp contends it is ‘horn-book law’ in New York that this breach renders the restrictive covenants unenforceable. Yet the cases it cites in support do not apply New York law---- It has also been held that when an employer exercises this right, to modify an at will employee’s contract by changing that employee’s terms of compensation, and the employee chooses to remain in the employer’s employ after being advised of that change, that employee is deemed to have acquiesced to the contract modification.” (citations omitted)). In support of her position that the totality of circumstances, including Poller’s “drastic reduction in compensation” in the wake of the RCA, counsels against enforceability, Poller cites Iron Mountain Info. Mgmt. v. Taddeo, where a court in the Eastern District of New York, applying Massachusetts law, held that “[i]t is well-settled under Massachusetts law that ‘[e]ach time an employee’s employment relationship with the employer changes materially such that they have entered into a new employment relationship a new restrictive covenant must be signed.’ ” 455 F.Supp.2d 124, 132-33 (E.D.N.Y.2006) (citations omitted) (alteration in original). On that basis, the Taddeo court'declined to issue a preliminary injunction enforcing a restrictive covenant, noting that significant changes to an employee’s fate of compensation or sales area imposed subsequent to the signing of a restrictive covenant agreement, when “far reaching,” tend to “suggest that the parties ha[ve] abandoned their old arrangement and ha[ve] entered into a new relationship.” Id. at 133 (quotations and citation omitted). Even if the Court were to adopt this aspect of Massachusetts law, it does not appear from the factual record that the RCA was imposed as a bullying tactic to force Poller into accepting lower compensation. See Renaissance Nutrition, Inc. v. Jarrett, No. 08 Civ. 800S, 2012 WL 42171, at *5-6 (W.D.N.Y. Jan. 9, 2012) (“Defendants argue that the agreement is invalid because it was procured through coercion and overreaching. In support of this argument, they point to several facts: it was presented to them after an all-day meeting; their roles, responsibilities, and compensation did not change after the agreement was signed; they were provided only one day notice; and they risked demotion if they did not sign.... With no legal authority on point, this Court is not prepared to rule, as a matter of law, that Renaissance’s actions were so inappropriate as to warrant invalidating the contract, especially given the unconvincing reasons provided by Defendants.”). And while the parties disagree as to the amount of compensation that Poller earned in the two years between signing the RCA and her resignation (see BioScrip’s Counterstatement to Plaintiffs Local Rule 56.1 Statement, Dkt. No. 78 (“Def.’s CSMF”), at ¶ 78), the Court is inclined to agree with BioScrip that “Poller’s continued employment with BioScrip, without protest, for almost two years after executing the covenants belies any presently convenient assertion that BioScrip’s purported reduction of her pay/benefits somehow vitiates the Agreement.” (Def.’s Mem. at 23.) Moreover, while BioScrip admits that it applied a firm-wide change to its compensation structure in 2009 for its infusion therapy sales force (Ex. B. at 156:20-157:17; Ex. I), Poller has provided no evidence that the reduction in her total compensation from 2007-2010 was the result of the firm-wide changed compensation structure, which did not necessarily “mean that Poller’s commissions would decrease.” (Def.’s Mem. at 21.) Instead, the commission structure was altered to reward new business acquisition as opposed to the maintenance of older referral sources. Accordingly, after the plan’s imposition, a given sales representative’s commission depended on that “sales representative and their success at obtaining new business.” (Id.; see also Ex. I.) Accordingly, the RCA is not unenforceable as a matter of law, as the circumstances do not suggest that Poller, as a victim of unequal bargaining power and limited other employment prospects, was forced into an RCA and later subjected to a drastic alteration of her rights as an employee. On the contrary, Poller took months to sign the agreement, consulted with her attorney over its terms, and remained as an employee for nearly two years in its wake. 4. Breach of Contract Claims Having determined that (1) there is an issue of material fact as to whether BioScrip’s referral and patient compilations merit trade secret protection; (2) BioScrip has a legitimate interest in protecting its customer goodwill; (3) the non-compete and modified non-solicitation clauses of the RCA are reasonable in duration and scope; and (4) public policy concerns, undue hardship, and the conditions surrounding the RCA’s imposition do not render it unenforceable as a matter of law, the Court now turns to BioScrip’s argument that summary judgment in its favor on its two breach of contract claims deriving from the RCA is warranted at this stage. First, with respect to the non-compete provision, if BioScrip ultimately is found to possess a legitimate trade secret interest in its patient and referral list compilations, Poller will have breached its terms, having worked as an IVIG salesperson for a competitor in the same territory where she worked as a representative for BioScrip. Second, with respect to the non-solicitation aspect of the RCA, even recognizing BioScrip’s legitimate interest in its customer goodwill, there remains an issue of material fact as to whether Poller breached this provision, as the record presents conflicting narratives with respect to Poller’s knowledge and development of referral sources prior to and during her time at BioScrip. As noted, Poller has been in the chronic care industry for many years, and some of her referral sources predate her time at BioScrip. It is axiomatic that BioScrip cannot legitimately prevent Poller from cultivating and maintaining referral sources that predate her relationship with it. Accordingly, there remains an issue of material fact as to whether Poller breached the non-solicitation clause, as modified by the Court, in soliciting various sources, as there is a genuine dispute as to the extent to which Poller knew certain practitioners whom she solicited on behalf of AOM before her employment with BioScrip. To summarize, while breach of the non-compete is conceded, there remains an issue of material fact as to its enforceability — as BioScrip may or may not have a legitimate trade secret interest in its referral sources and patients. Additionally, despite BioScrip’s legitimate interest in protecting the goodwill of its referral sources through the non-solicitation clause, there is an issue of material fact as to the extent to which Poller solicited practitioners whom she knew before her employment at BioScrip, such that those individuals could not legitimately be construed as business assets of BioScrip. Finally, as noted, BioScrip also advances a breach of the non-disclosure portion of the RCA (Count II), which provides, in pertinent part, that Poller was to “keep secret and retain in strictest confidence, and shall not use for [her] benefit or the benefit of others, except in connection with [BioScrip’s business] and the affairs of [BioScrip], all confidential and proprietary matters relating to [BioScrip] and [its business] learned by [Poller] ... from [BioScrip].” (Ex. 3 at 2.) Such confidential information is defined as, inter alia> “customers, clients, suppliers, sources of supply and customer lists,” and “sales figures, contracts, agreements, and undertakings with or with respect to customers.” (Id.) Here, it is undisputed that Poller sent some of the aforementioned information to her personal email account from her BioScrip account during the weekend of March 4-6, 2011. However, the extent to which she used this information for her own benefit, or for the benefit of AOM, as proscribed by the provision, remains a genuinely disputed issue of material fact. (See, e.g., Ex. C at 241:5-242:14 (“The reason I have this was that so I just know the patients and know how they should, you know, be taken care of. And I have never used this; I have never shared information with anybody.”); Ex. D at 115:9-116:8 (Dr. Jampolis noting in his deposition that AOM looked at Poller’s revenue as a salesperson before hiring her but not her customer or patient records, noting that he “would have heard if Judy or Ann [referring to Ann Martens, AOM’s director of sales] took BioScrip information”); Ex. E at 154:16-23 (Sherri Benson, Executive Vice President of AOM, noting that she never knew of Poller utilizing anything at AOM from her time at BioScrip except her commission report); Ex. F at 131:5-23 (Ann Martens noting that she was unaware of Poller taking any BioScrip information for use at AOM and stating that she knew Poller had returned her phone and laptop upon her resignation from BioScrip).) Accordingly, Poller’s motion for summary judgment and BioScrip’s cross-motion on Poller’s declaratory judgment act claim and on Counts I and II are denied. B. Breach of Fiduci