Dalzell Management Co. v. Bardonia Plaza, LLC

923 F. Supp. 2d 590, 2013 WL 592672, 2013 U.S. Dist. LEXIS 21272
CourtDistrict Court, S.D. New York
DecidedFebruary 15, 2013
DocketNo. 11 Civ. 5617(ER)
StatusPublished
Cited by35 cases

This text of 923 F. Supp. 2d 590 (Dalzell Management Co. v. Bardonia Plaza, LLC) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dalzell Management Co. v. Bardonia Plaza, LLC, 923 F. Supp. 2d 590, 2013 WL 592672, 2013 U.S. Dist. LEXIS 21272 (S.D.N.Y. 2013).

Opinion

MEMORANDUM & ORDER

RAMOS, District Judge.

Plaintiff Dalzell Management Company, Inc. (“Plaintiff’ or “Dalzell”) brings this action alleging a violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(2)(C) (the “CFAA”), and six state law claims arising out of the alleged wrongful eviction of Plaintiff by the Defendants. Defendants move to dismiss the Complaint based on the abstention doctrine of Colorado River Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). Docs. 26, 29. For the reasons stated herein, Defendants’ motion is DENIED.

I. Background

a. Facts

Plaintiff is a real estate management company owned by Richard Sena (“Sena”). Compl. ¶¶ 13-14. Since approximately 1997, Plaintiffs office has been located at 2 Bardonia Mall in Bardonia, New York (the “Premises”). Id. ¶ 18. The Premises is a commercial office building with various offices and business located therein. Id. ¶ 19. Plaintiff alleges that Defendants Bardonia Plaza, LLC (“Bardonia Plaza”), Eric Bergstol (“Bergstol”) and/or Milton Shapiro (“Shapiro”) own the Premises. Id. ¶ 21.

In or around 1997, Plaintiffs prior owner entered into an oral agreement with Bergstol, whereby Plaintiff would occupy the Premises to operate its property management business and would also provide property management services to Defendants. Id. ¶¶ 25, 27. The parties also agreed that Plaintiff was to be paid five percent of the base rents collected for each property managed as a monthly management fee. Id. ¶ 31.

Plaintiff alleges that it maintained its own computer system where it stored in[594]*594formation concerning all properties managed by Plaintiff, including those not owned and/or operated by Bardonia Plaza, Bergstol and Bergstol Enterprises, Inc. (collectively the “Bergstol Defendants”), as well as proprietary and confidential information of the Plaintiff, including Plaintiffs banking information. Id. ¶ 37. Additionally, Plaintiff alleges that only Sena had authority to access the server. Id. ¶ 36. The Bergstol Defendants were not authorized to access the server or Plaintiffs files. Id. ¶ 38.

On or about August 1, 2011, Shapiro met with Sena outside the Premises and gave Sena a Notice of Termination of Employment. Id. ¶ 43. When Sena returned to his office, Defendants Bergstol, Dominic Capio (“Capio”), and Joel Black (“Black”), and two information technology employees of Bergstol Enterprises, were there and were in the process of copying the files from Plaintiffs computer server. Id. ¶¶ 47-50. At that time, Bergstol also informed Sena that the locks to Plaintiffs office had been changed. Id. ¶ 49. Black next asked Sena to provide him with the password to a specific program used by Plaintiff to maintain records on the various properties it manages, but Sena refused; however, Black still managed to access Plaintiffs computer files. Id. ¶¶ 57-59.

Sena was later advised that he could return to his office on August 4, 2011 to retrieve his files and belongings. Id. ¶ 66. When Sena arrived at the office on the morning of August 4, Capio was present and advised him that he could take the files and belongings that had been placed in boxes. Id. ¶ 67. According to Plaintiff, Capio did not have the authority to touch or box Plaintiffs property. Id. ¶ 69. The police were called, and shortly thereafter, Bergstol arrived at the Premises with two individuals, id. ¶¶ 70-71. With police present, the parties agreed to give Plaintiffs attorney the keys to the Premises. Defendants also agreed that they would not reenter the Premises or take any of Plaintiffs files. Id. ¶72. Sena proceeded to take some of his belongings, including the server and computers, and left the Premises. Id. ¶ 73.

Later that afternoon, Sena returned to the Premises. Id. ¶ 74. According to Plaintiff, Defendants had again called a locksmith who appeared at the Premises to change the locks. Id. ¶ 75. Once again in the presence of the police, the parties agreed that the locks could be changed but the police would take possession of the keys until the matter was resolved. Id. ¶ 78. Plaintiff alleges that the Defendants have destroyed Plaintiffs business and gained unauthorized access to, and stolen, its computer and paper files. Id. ¶ 79.

b. The Federal Action

On August 12, 2011, Plaintiff commenced a federal action in this Court against the seven named Defendants. Doc. 1. Plaintiffs action alleges: (1) a violation of the CFAA; (2) trespass to chattel; (3) trespass to land; (4) conversion; (5) destruction and loss of Plaintiffs business; and as against Bardonia Plaza, Bergstol and Shapiro, (6) wrongful eviction pursuant to New York State Real Property Actions and Proceedings Law (“RPAPL”) § 853 and (7) failure to provide the requisite notice to terminate a license pursuant to RPAPL § 713. Plaintiff seeks monetary relief, as well as injunctive relief enjoining Defendants from accessing, utilizing or disseminating the information taken from Plaintiffs computer system and seeking the return of the copied files.

To date, the parties have filed Fed. R.Civ.P. 26(a)(1) disclosures, Docs. 19, 23, and appeared twice before this Court. Additionally, according to Plaintiff, the parties have exchanged discovery demands. Decl. of Brian K. Condon (“Condon Deck”)

[595]*595¶ 13. However, according to Defendants, Defendants have served their written discovery requests on Plaintiff but Plaintiff has not served written discovery, nor has it answered Defendants’ requests to do so. Defs.’ Reply Mena. L; 8.

c. The State Action

On August 16, 2011, four days after the filing of the federal action, Bardonia Plaza and seven entities not included in the federal action1 filed a Summons and Complaint in New York State Supreme Court, Rockland County, against Dalzell and three parties not named in the federal action.2 Bardonia Plaza, LLC, et al. v. Dalzell Management, LLC, et al, No. 31894/11, Doc. 1 (“State Compl.”); Defs.’ Ex. C, Doc. 27-3. Specifically as to Dalzell and Sena, the plaintiffs’ action alleges: (1) breach of fiduciary duty; (2) tortious interference; (3) trespass; (4) breach of contract; (5) mismanagement and waste; and (6) unjust enrichment. Plaintiffs seek, inter alia, to eject Dalzell and Sena from the Premises; monetary relief; a formal accounting of all accounts payable and receivable for a specified time period; and injunctive relief to, inter alia, restore plaintiffs’ access to the Dalzell office, obtain the return of documents and records relating to the managed properties, and order defendants to refrain from disseminating plaintiffs’ proprietary and confidential information.

The state action plaintiffs claim, inter alia,

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Bluebook (online)
923 F. Supp. 2d 590, 2013 WL 592672, 2013 U.S. Dist. LEXIS 21272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dalzell-management-co-v-bardonia-plaza-llc-nysd-2013.