Ramirez v. Issa

2024 NY Slip Op 31058(U)

• Court: New York Supreme Court, Kings County
• Decided: March 28, 2024
• Status: Unpublished

Opinion

Ramirez v Issa 2024 NY Slip Op 31058(U) March 28, 2024 Supreme Court, Kings County Docket Number: Index No. 521206/2023 Judge: Leon Ruchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: KINGS COUNTY CLERK 03/28/2024 02:24 PM INDEX NO. 521206/2023 NYSCEF DOC. NO. 326 RECEIVED NYSCEF: 03/28/2024

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF KINGS : CIVIL TERM: COMMERCIAL PART 8 ------ ----- ----- -- --- .--------------~x CESAR RAMIREZ and ADRIANA RODRIGUEZ, individually and as stockholders of MANHATTAN FARE CORP., and in the ri9ht of MANHATTAN FARE CORP., Plaintiff, Decision arid order

- against - Ir:idex No. 52120.6/2023

MONEER ISSA, MANHATTAN FARE CORP. , and 431 FOOD MARKET CORP. , Defendants, March 2B, 2024 - ~---------- ------------ --- -----------x PRESENT: HON. LEON RUCHELSMAN Motion Seq. #15 & #18

The defendants have moved seeking to enjoin the plaintiff

from utilizing the company's customer list and intellectual

property and to order the. plaintiff to return such intellectual

property to the defendant. The plaintiff opposes the motion.

Papers were submitted by the parties anc:1 argume11ts held. After

reviewing all the arguments this court now makes the following

determination.

As recorded i.n prior orders the defendant Manhattan Fare

Corp., operated a restaurant called Chef's Tabl.e at Brooklyn

Fare, which is located at 431 west 37 th street, in New York

County. The plaintiff, Cesar Ramirez, was employed as an executive chef by the defendahts s~n~e 2009 and a~ of 2022

received twenty-five of all profits rep;tesentin9 a twenty-five

pe.rcent ownership .interest. in. Manh.3:ttan Fare Corp. The

pla:Lntiff.s ins ti tut;ed thig 1awsui t alleging that Ramir.ez was

fired without any justification. The de:E"endants an,swered and

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asserted affirmative defenses and counterclaims that the

plaintiff Rarttire·z and his wife, plaintiff Adriana Rodriguez

engaged in theft and fraud and soug.ht to harm Manhattan Fare.

The defendants now seek to enjoin the plaintiff from utilizing

the customer list and the Irtstagrartt social media account of

Chef's Table. The defendants fear the plaintiff will utilize the

information contained in the customer list and social media

account to unfairly compete with the defendants. The plaintiff

opposes the motion arguing there is no basis for such an

injunction and that in any event any injunction would curtail the

plaintiff's free speech rights.

Conclusions of Law

In relevant part, CPLR §6301 allows the court to issue a

preliminary injunction "in any action ... where the plaintiff has

demanded and would be entitled to a judgment r~straining

defenda-nt from the commission or the continuance of an act,

which, if committed or continued during the penderi.c.y of the

action, would produce injury to the plaintiff 0 (id).

It is well established that "the party seeking a preliminary inj11nction must demonstrate a probability of success on the

merits, danger of irreparable injury in the absenpe of the

injunction and a balance o.f the equitie.s in its favor" (Nobu N.ex.t

Door, LLC v. Fine Arts Housing, Inc., 4 NY3d 839, 800 NYS2d, .48

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[2005], see also, Alexandruv. Pappas; 68 ,AD3d 690, 890 NYS2d 593

[2d Dept., 2009]), The Second Department has noted that "the

remedy of granting a preliminary injunction is a drastic one

which should be used sparingly" (Town .of Smithtown v. Carlson,

204 AD2d 537, 614 NYS2d 18 [2d Dept,, 1994]). Thus, the Second

Department has been clear that the party seeking the drastic

remedy of a preliminary injunction has the bu.rden o'f proving each

Of the above noted elements "by Clear and c:onvincing evidence"

(Liotta v. Matt one, 71 AD3d 7 41,. 900 NYS2d 62 [2d Dept., . 2010] ) .

Thus, a preliminc1ry injunction is proper where evidence has

been presented that art individual is misappropriating trade

secrets to harm or disadvantage the protector of the secrets

(L. L O'Connell Associates Ihc., v. Mcgetrit:k, 30 Mist:3d 1238 (A),

961 NYS2d 359 [Bupreme Court Suffolk County 2012]) . TO establish

the plaintiff in this case has misappropriated trade secrets the

defendants must present evidence that the plaintiff is in

possession of trade secrets and that it utilized such trade

secrets in breach of a duty of loyalty or as a result of

discovery by improper means (see, Integrated Cash Management

Services Inc,, v. Digital Transactions Inc.; 920 F2d 171 [2d Cir.

1990]). In P~rche~ Trad±ng Ltd., v. Depersia, 2020 WL 764211

[S.D.N,Y. 2020]. the court noted that "'a cu~torner list that contains such information as the identiti.es and preferences of

cLient contacts' may.be a 1 protectable trade seo~etn (id). The

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court explained that \'a trade secret may 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 Cif which, in unique combination, af£ords a competitive advantage"

(id). Therefore, customer lists will qualify as trade secrets

where the list is within the exclusive knowledge of the company

and cannot be ''reaq.ily ascertained" by others in the industry without "extraordinary efforts" (Poller v. BioScrip Inc., 974

F.Supp2d 204 [S.D.N.Y. 2013]). However, contact information of

customers that is ''little more than a compilation of publicly available information" are trot trade secrets (Art & Cook Inc. , v.

Haber, 416 F.Supp3d 191 [E.D.N.Y. 2017]). Moreover, information

that could easily be recalled by the plaintiffs, if any, in their

dealings with the same customers is not a trade secret. As the

court observed in Catalogue Service of Westchester Inc .• v.

Henry, 107 AD2d 783, 484 NY.S2d 615 [2d Dept., 19B5]), ''remembered

information as to specific needs and business habits of particular customers is not confidential." ( id) . Cases that have

·held customer lists are trade secrets where it would be difficult

to acquire that information from other sources since they contain

customer preferences, refers to such information that cannot

~imply be asked. of the customer (North Atlantic :tnstrurnerits Inc., v .. Haber, 188 F3d 38 [2d. Cir 1.999]). In instances where the

cust:omer preferences are part of \\a long, difficult process to

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educate and convert a prospective customer to the benefits of the process" being- offered then such preferences; like the customer

list itself may afford trade secret protection (see, Webcraft

Techrioloqies Inc., v. Mccaw, 67 4 F. Supp. 10 39 [S. D.N .Y. 19:87] ) .

The defendants argue the customer information is

proprietary and thus constitutes trade secrets for two reasons ..

First, the customer list is priv-ate and only a handful of employees had access to it. Second, the customer list did not

mere1y contain a list of customers but included far more

exclusive information. Thus, the customer information includes

"Iiotes and observations made by Company personnel about each

customer's preferences and idiosyncrasies or special

requirements" and can only be "reproduced through years of

meticlllous effort as was invested by the Company and Issa over

many years" (Memorandum of Law in Support, Page 15 [NYSCEF Doc.

No. 287]). Indeed, Mr. Issa provided an affidavit wherein he

stated that at his "direction, Manhattan Fare employees compiled

a confidential proprietary l i s t of Chef;s Table customers. This

list: is a computer file that includes customer contact

information; financial informationi and individualized notes

about each customer's preferences and ididsyncrasies, all of

which information was t1pda-f:ed f:r:om time t.6 time and rnodi:rieci

based on changes in customer base a:nd the customers' tastes and

preference.sli (see:, Aff:idavi t of Moneer. Issa, CJ[5 [NYSGEF D.oe~ No.

s

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285]).

Although the plaintiff's counsel questions the existence bf

such a list there is no evidence presented by the plaintiffs

themselves disputing its existence. Moreover, while solicitation

6f customers by a former employee is not barred absent a non.-

solicitation clause (Abraham Zion C:orp., v. Lebow, 593 F.Supp.

551 [S.D.N.Y. 1984]), a former employee, or anyone for that matter, may riot solicit utilizing a trade secret (North Atlantic

Instruments, Inc., v. Haber, 188 F3d 88 [2d Cir. 1999 J ) .

Considering all the evidence presented, the customer list in this

case clearly ·qualifies as a trade secret. Thus, the defendants

have satisfied the first prong demonstrating a likelihood of

success on the merits regarding the proprietary nature of the

customer list.

Further, it is well settled that the loss of trade secrets

cannot be measured in money damages because once a trade secret

is lost it is lost ''forever'' (FMC Corp. v. Taiwan Tainan Giant

Industrial Co .• · Ltd., 730 F2d 61 [2d Cir. 1984]) . Lastly, the

balance of equities ,favors the defendants. Although the

plaintiffs have not yet actively competed with the defendants, if

and when they do so, they may not utilize the customer list of

the defendant restaurant. Consequently, the motion seeking an

injunction prohibiting the plaintiffs from utilizing the customer list is granted.

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Concerning the Instagram account of the restaurant, Mr. Issa

states that he created the account under the name Chef's Table

and that over time the operation of the account as well as the

pas-Swords were given to plaintiff Adriana Rodriguez (see,

Affidavit of Moneer Issa, ':II8ill [NYSCEF Doc. No. 285]). Counsel

for the plaintiff's asserts that "the Instagram account has

alw,3.ys belonged to the Plaintiff Adriana Rodriguez'i (see,

Memorandum in Opposition, page 3 [NYSCEF Doc. No. 293]),

Further, plaintiff's counsel argues that "the Instagram account

to which the Defendants refer was created, owned and operated at

all relevant times by the Plaintiff Adriana Rodriguez, The

Plaintiff Rodriguez created the account by herself and on her own

time. She registered the account with her perscirial cell phone

m.1rt1her and has always maintained exclusive access to her

individual Instagram account in 2020 frorn its inception to date,

She was the sole individual posting on the Insta.gram accm.:int, and

the only person with access to the account was and is Plaintiff ~od±iguez. All the pictures o~ the Instagram account were taken

by Plaintiffs and depict fpod that was prepared solely by he.r

husband Cesar Ramirez. The Plaintiff Rodriguez is the sole owner

of this Instagram a.ccount" (id., at page 6). While there is no

affidavit from Ms, Rodriguez in this regard, the information subrrii tted including the opening of the. Instagram account surely

tais.es questions of fact whether the. account belongs to Chef's

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Table or Mr. Rodriguez. Thus, while it is true that a

preliminary injunction may be granted where some facts are iri

dispute· and it is still apparent the moving party has a

likelihood of success on the merits, (see, Borenstein v. Rochel

Properties, 176 AD2d 171, 574 NYS2d 192 [ pt Dept., 1991 J) some

evidence of likelihood of success must be presented. Therefore,

when "key factsf' are in q;ispute and the moving party cannot satisfy the necessary elements then an injunction must be denied

(Digestive Liver Disease P.C. v. Patel, 18 AD3d 423, 793 NYS2d

773 [2d Dept., 2005]).

The ownership of the Instagrarn account is decidedly

disputed. Thus, there can be no injunctive relief concerning the

account until the factual issues of 'Ownership are resolved.

Therefore, the motion seeking any injunctive relief regarding the

Instagra:m account is denied.

So ordered.

ENTER:

DATED: March 28, 2024 Brooklyn N.Y. jD Hon. Leon Ruchelsman JSC

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