Ramirez v. Issa

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

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

[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

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

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.

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

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 s