Tandym Group, LLC v Mission Staffing Inc.

2024 NY Slip Op 32960(U)

August 21, 2024

Supreme Court, New York County

Docket Number: Index No. 655839/2023

Judge: Margaret A. Chan

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.
INDEX NO. 655839/2023

NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 08/21/2024

1 of 9

SUPREME COURT OF THE STATE OF NEW YORK 

COUNTY OF NEW YORK: COMMERCIAL DIVISION PART 49M 

---------------------------------------------------------·-------------------X 

TANDYM GROUP, LLC, 

Plaintiff, 

-vMISSION STAFFING INC. and PAUL HERMAN, 

Defendants. 

-----------------------------------------------------------------------------------X 

HON. MARGARET A. CHAN: 

INDEX NO. 655839/2023 

MOTION DATE 03/25/2024 

MOTION SEQ. NO. 001 

DECISION+ ORDER ON 

MOTION 

The following e-filed documents, listed by NYSCEF document number (MS00l) 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 

16, 17, 18, 19, 20, 21, 23, 24, 25 

were read on this motion to/for DISMISS 

Plaintiff Tandym Group, LLC (Tandym) brings this action against defendants 

Mission Staffing Inc. (Mission) and Paul Herman (Herman, and together with 

Mission, defendants) asserting claims in connection with defendants' purported 

solicitation of employees and clients from Tandym and their purported 

misappropriation of Tandym's confidential information. Now before the court is 

defendants' motion, pursuant to CPLR 3211(a)(l) and (a)(7), for an order dismissing 

the Complaint (NYSCEF # 6). Tandym opposes the motion. For the following 

reasons, defendants' motion is granted. 

Tandym is Delaware limited liability company that provides full-service 

recruitment, temporary staffing, and workforce solutions ((NYSCEF # 2, Complaint 

or compl ,,i 20, 43). Herman is a former employee for Tandym who held the position 

of Vice President, Professional Services, between 2011 to 2023 (id ,ii 2, 21, 24). 

Herman was responsible for hiring employees, generating new business, and 

maintaining and growing business with existing clients (see id 11 25·28). 

According to the Complaint, Tandym required its employees to sign certain 

non·solicitation, non-competition, and confidentiality agreements so as to protect 

the confidential information, trade secrets, and client relationships and goodwill for 

1 The following facts are drawn from the Complaint and the exhibits accompanying the parties' 

submissions in connection with defendants' motion. These facts, to the extent not refuted by 

documentary evidence, are assumed true solely for purposes of resolving defendants' motion. 

655839/2023 TANDYM GROUP, LLC vs. MISSION STAFFING INC. ET AL Page 1 of g 

Motion No. 001 

[* 1]
INDEX NO. 655839/2023

NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 08/21/2024

2 of 9

which it had devoted substantial resources to cultivate and preserve (see compl 

,r,r 41·50). Tandym maintains that Herman signed these agreements while 

employed with the company (see id ,r,r 7, 33, 41). 

Although its Complaint quotes various terms of this purported restrictive 

covenant agreement with Herman (seecompl ,r,r 34·39), Tandym did not submit 

with the Complaint a copy of any such agreement(s).2 By contrast, in connection 

with their motion, defendants did submit a Confidentiality and Non ·Solicitation 

Agreement, dated December 15, 2011 (the Agreement), that contains certain of the 

alleged non-solicitation and confidentiality provisions alleged in the Complaint 

(compare NSYCEF # 12 -Agreement§§ 1.1, 1.2, 2.2 with compl ,r,r 34, 36·38), 

although this Agreement is between Herman and an entity called The 

Execu I Search Group, Inc. (Execu I Search) (see Agreement at 1). 

As relevant here, Section 2 of the Agreement sets forth Herman's non· 

solicitation obligations to Execu I Search. Section 2.2 provided that Herman would 

not (a) "[d]isclose, use, exploit, rely upon or take any advantage of in any way 

whatsoever, directly or indirectly any of Execu I Search's open job orders," (b) 

"[d]islcose, contact, use, exploit, rely upon or take advantage of in any way 

whatsoever, directly or indirectly, any of Execu I Search's candidates" (c) "[i]nfluence 

or attempt to influence ... a job candidate, supplier or customer ... to terminate or 

modify any written or oral Agreement or course of dealing with the Firm," and (d) 

"[i]influence or attempt to influence ... a supplier or customer ... for the purpose of 

offering or selling any services which are identical, substantially similar or 

comparable to the services offered by the Firm" (Agreement§ 2.2[a]·[d]; compl ,r,r 8, 

34). Section 2.3-which is not referenced in the Complaint-in turn provided that 

Herman would not, following his employment, 

directly or indirectly ... influence or attempt to influence any person 

to (i) terminate or modify his employment with the Firm; (ii) solicit for 

employment, directly or indirectly, any person employed by the Firm 

as an employee; or (iii) employ or otherwise retain the services of, 

directly or indirectly, any person employed by the Firm as an employee 

during the time that [Herman] was employed by the Firm 

(Agreement§ 2.3).3 Tandym claims that these non-solicitation restrictions were 

imposed on Herman for a 12·month period (see compl ,r,r 8, 34·35). But the 

2 Tandym states that the "non-solicitation, non-complete [sicl, and confidentiality agreements" were 

attached to the Complaint as Exhibit A and Exhibit B (see e.g. comp! ,r,r 33, 37). But a review of the 

docket and pleadings makes clear that 110 exhibits were actually submitted with the Complaint. 

3 Tandym alleges that Herman agreed that (1) "for a period of twelve months following his 

separation from employment," he would not "directly or indirectly ... perform job activities of the 

type [Herman], or [Herman's] subordinates, performed or provided for Tandym within the two years 

preceding [Herman's] termination that are competitive with the line of services provided by 

[Herman] for the Tandym," and (2) this restriction applied "within twenty-five miles of the locations 

655839/2023 TANDYM GROUP, LLC vs. MISSION STAFFING INC. ET AL Page 2 of g 

Motion No. 001 

[* 2]
INDEX NO. 655839/2023

NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 08/21/2024

3 of 9

Agreement actually provides that Section 2.2's restrictions would be in place "for a 

period of eighteen (18) months following cessation of such employment," and that 

Section 2.3's restrictions would last for a period of "two (2) years following cessation 

of [Herman's] employment" (Agreement§§ 2.2, 2.3). The Agreement contains no 

geographical limitation to these restrictions (see generally Agreement §§ 2.1 ·2.5). 

Section 1 of the Agreement addressed Herman's confidentiality restrictions. 

In particular, pursuant to Section 1.2, Herman agreed to "hold in strictest 

confidence, and not to disclose or allow to be disclosed ... and not to use ... 

Confidential Information, including Confidential Information developed by 

[Herman], without the express permission of an officer of the Firm" (Agreement 

§ 1.2; see alsocompl 11 36·37). "Confidential Information," in turn, was defined as 

"any information that is not generally known to the public," with the Agreement 

then enumerating a list of examples (Agreement§ 1.1; comp! ,r 38). 

Tandym alleges that, throughout his employment, Herman gained knowledge 

about high-performing employees in his division at Tandym (comp! ,r 26). It further 

asserts that Herman became "intimately familiar" with Tandym's confidential 

information, including ''.[c]lient lists," "[p]rospective client lists," [c]urrent and 

historical client account information," "[f]inancial information," "Tandym's business 

development plans, products, strategies, revenue projections, financial planning, 

and accounts receivable information," the "terms of Tandym's agreements and 

financial arrangements," various internal materials belonging to Tandym, employee 

financial information, and Tandym's analyses and strategies (id ,r 30). Tandym 

maintains that this information was protected on a password·protected network 

(id ,r 31). 

Eventually, on May 1, 2023, Herman resigned from his position at Tandym 

and became a Partner at Mission, a New York corporation that, like Tandym, 

provides full-service recruitment, temporary staffing, and workforce solutions 

(comp! 11 2, 22). Then, between May 1, 2023, and September 5, 2023, five 

employees in Tandyrp_'s Professional Services Division-all of whom either directly 

or indirectly reported to Herman-resigned from their employment, without prior 

notice, and immediately joined Mission (see id 11 3, 5, 51, 53·54). The Complaint 

does not indicate (a) what, if any, confidential information was misappropriated by 

Herman and/or Mission, (b) how, if at all, such information constituted confidential 

information or a trade secret, or (c) which, if any, clients were solicited by 

defendants (see generally id 11 30, 65·68, 78·79, 92·93, 100·102, 107·110). 

Tandym claims, upon information and belief, that these employees' 

departures were part of a raid conducted by Mission with Herman's assistance (see 

compl 11 4, 12·14, 52, 54·55). Although the Complaint does not identify any of the 

where the employee worked for Tandym" (compl ,r,r 9, 35). But there is no such restriction or 

geographical limitation in the Agreement. 

655839/2023 TANOYM GROUP, LLC vs. MISSION STAFFING INC. ET AL 

Motion No. 001 Page 3of9 

[* 3]
INDEX NO. 655839/2023

NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 08/21/2024

4 of 9

five employees by name, defendants submit certain emails related to three former 

Tandym employees that were fired by Tandym, which defendants claim undercuts 

Tandym's contention that the at-issue employees had resigned (NYSCEF # 13).4 

legal Standard 

CPLR 3211(a) provides for various grounds under which a party may move to 

dismiss one or more causes of action, including when a pleading "fails to state a 

cause of action" (CPLR 3211 [a] [7]) or "a defense is founded upon documentary 

evidence" (CPLR 3211 [a] [1]). On a motion to dismiss pursuant to CPLR 3211(a)(7), 

the court "must accept as true the facts as alleged in the complaint and submissions 

in opposition to the motion, accord plaintiff[] the benefit of every possible favorable 

inference and determine only whether the facts as alleged fit within any cognizable. 

legal theory" ( Whitebox Concentrated Convertible Arbitrage Partners, L.P. v 

Superior Well Servs., Inc., 20 NY3d 59, 63 [2012]). Whether a plaintiff can 

ultimately establish its allegations is not considered when determining a motion to 

dismiss (EBC L Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). However, the 

court will not accept as true "conclusory allegations of fact or law not supported by 

allegations of specific fact" ( Wilson v Tully, 243 AD2d 229, 234 [1st Dept 1998]). 

Dismissal based on documentary evidence is warranted "where 'it has been 

shown that a material fact as claimed by the pleader is not a fact at all and no 

significant dispute exists regarding it"' (Acquista v N. Y. Life Ins. Co., 285 AD2d 73, 

76 [1st Dept 2001] [alterations omitted]). In "those circumstances where the legal 

conclusions and factual allegations are flatly contradicted by documentary evidence, 

they are not presumed to be true or accorded every favorable inference" 

(Morgenthow & Latham v Bank of N. Y. Co., 305 AD2d 7 4, 78 [1st Dept 2003] 

[internal quotation omitted]). 

Discussion 

In moving to dismiss, defendants first focus on Tandym's breach of contract 

claims, arguing that Tandym failed to establish (1) that it is a party to the 

Agreement, (2) that the Agreement's restrictive covenants are enforceable, or 

(3) that any purportedly disclosed confidential information constitutes a trade 

secret warranting protection (see NYSCEF # 10-MOL at 9·15; NYSCEF # 25-

Reply at 4·6). Defendants next argue that Tandym's breach of fiduciary duty claim 

fails because it is duplicative ofTandym's breach of contract claims (see MOL at 15· 

16; Reply at 7·8). Turning to Tandym's tortious interference with contract claim, 

defendants contend that, not only has Tandym failed to plead that there is a valid 

4 Defendants also submit an affidavit by Herman setting forth additional factual averments 

concerning his and other employees' departure from Tandym (see NYSCEF # 11). The court does not 

consider these additional facts on this motion because "factual affidavits do not constitute 

documentary evidence" that can be considered "within the meaning of' CPLR 3211 (a)(l) (see Serao v 

Bench·Serao, 149 AD3d 645, 646 [1st Dept 2017)). 

655839/2023 TANDYM GROUP, LLC vs. MISSION STAFFING INC. ET AL 

Motion No. 001 Page4of 9 

[* 4]
INDEX NO. 655839/2023

NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 08/21/2024

5 of 9

contract, but it has also failed to allege that the Agreement would not have been 

breached "but for" Mission's conduct (see MOL at 17·18; Reply at 8). And with 

regard to the tortious interference with business relations claim, defendants aver 

that Tandym failed to establish that defendants acted with malice in engaging in 

any purported interference (see MOL at 18·20; Reply at 8·9). Finally, addressing 

Tandym's misappropriation of confidential information and unfair competition 

claims, defendants maintain that Tandym failed to allege any acts of 

misappropriation or identify any confidential information that was misappropriated 

(see MOL at 22·23; Reply at 9·12). · 

Tandym's opposition largely fails to grapple with defendants' bases for 

dismissal. After acknowledging that the Complaint does not cite to the correct 

restrictive covenant agreement, Tandym first contends that it nevertheless 

sufficiently alleges the relevant terms of the Agreement, that those terms are 

reasonable as to time and scope, and that Herman breached them (NYSCEF # 21 -

Opp at 4·8). But the remainder ofTandym's opposition then argues that it has 

properly pleaded alternative tort cause of action because the Agreement is in 

dispute (see id at 9·13). 5 

The court addresses these contentions in turn. 

I. Breach of Contract Claims (First. Second, and Fifth Causes of Action) 

To sufficiently plead a cause of action for breach of contract, a plaintiff must 

allege that (1) a contract exists, (2) plaintiff performed under the contract, (3) 

defendant breached its contractual obligations, and (4) defendant's breach resulted 

in damages (34·06-73, LLC v Seneca Ins. Co., 39 NY3d 44, 52 [2022]). And to state a 

claim for tortious interference with contract, a plaintiff must allege "(1) the 

existence of a valid contract between plaintiff and a third party; (2) the defendant's 

knowledge of that contract; (3) the defendant's intentional procuring of the breach; 

and (4) damages" (C.H.A. Design Export (H.K) Ltd v Miller, 191 AD3d 459, 459 

[1st Dept 2021], quoting Foster v Churchill, 87 NY2d 744, 749·750 [1996]). As the 

above makes clear, for either claim, the existence of a valid contract is central. 

Here, the crux of Tandym's two breach of contract claims is that Herman, 

upon accepting his new position at Mission, breached his restrictive covenants by 

(1) "soliciting, servicing or otherwise interfering with Tandym's relationships" with 

clients or prospective clients and (2) using or disclosing confidential information and 

trade secrets (compl ,r,r 57·62, 64·69). Similarly, Tandym's tortious interference 

with contract claim avers that Mission caused Herman to breach his restrictive 

covenants by "inducing, encouraging or helping Herman [to] solicit Tandym's 

clients" and to misappropriate Tandym's "confidential information and trade 

secrets" (id ,r,r 91 ·96). These claims, however, are ultimately defective for one 

5 Tandym also spends several pages of its opposition arguing that it has sufficiently pleaded damages · 

(Opp at 8·9). But defendants did not raise this as a basis for dismissal in their moving papers. 

655839/2023 TANDYM GROUP, LLC vs. MISSION STAFFING INC. ET AL 

Motion No. 001 Page 5of9 

[* 5]
INDEX NO. 655839/2023

NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 08/21/2024

6 of 9

particularly glaring reason: Tandym has not established the existence of a valid 

contract between it and Herman. 

Although the Complaint avers that restrictive covenants to which Herman 

agreed arose from an agreement between Herman and Tandym (see compl ,r,r 7·8, 

33·34), the documentary evidence supplied by defendants-which Tandym does not 

dispute (see Opp at 4·5)-establishes that the Agreement is between Herman and 

an entity called Execu I Search, not Tandym (see Agreement at 1). Nothing in the 

Complaint suggests that that Execu I Search and Tandym are the same entity or 

that Tandym otherwise succeeded or retained Execu I Search's rights under the 

Agreement. Accordingly, as alleged, there is no basis to conclude or infer that 

Tandym has contractual privity with Herman under the Agreement so as to allow 

Tandym to sustain its breach of contract and tortious interference with contract 

claims (see Perma Pave Contr. Corp. v Paerdegat Boat and Racquet Club, Inc., 156 

AD2d 550, 551 [1st Dept 1989] [holding that a party may not assert a claim to 

recover damages for breach of contract against party with whom it is not in privity]; 

Naderi v N. Shore-Long ls. Jewish-Health Sys., 2014 WL 840417, at *3 [Sup Ct, NY 

County, Feb. 28, 2014], affd 135 AD3d 619 [1st Dept 2016] [holding that plaintiff 

failed to adequately demonstrate any contractual relationship between parties, and 

thus failed to establish the existence of a valid contract]; see also MidAmerica 

Prods., Inc. v Derke, 33 Misc3d 1209[A], at *3 [Sup Ct, NY County, 2010] 

[dismissing breach of restrictive covenant claim when there were "[nlo allegations 

that [defendants] entered into noncompetitive covenants with plaintiffs"]). 

In an effort to avoid this conclusion, Tandym asserts for the first time in its 

opposition that it was "formerly known as Execu I Search Group prior to a 

rebranding in June 2022" (Opp at 5 n.1). This stray assertion-which appears in a 

footnote-fails resuscitate Tandym's claims. As an initial matter, to the extent 

Tandym is seemingly attempting to amend its Complaint to rectify the defect 

established by defendants' documentary evidence, it is not permitted to informally 

amend its complaint through its opposition brief (see MediaXposure Ltd (Cayman) 

v Omnireliant Holdings, Inc., 29 Misc 3d 1215[A], at *5 [Sup Ct, NY County, 2010] 

["plaintiff seeks to amend the complaint through an opposition brief, which is not 

permissible"]; Rosenberg v Home Box OU:, Inc., 2006 WL 5436822, at *10 [Sup Ct, 

NY County, 2006] [observing that a "plaintiff may not amend his complaint to add a 

new legal theory via statements in a memorandum of law in opposition to a pending 

dispositive motion"], affd33 AD3d 550 [1st Dept 2006]). At any rate, Tandym's bare, 

unsupported assertion, without more factual support or context, fails to establish 

the necessary privity for it to maintain a breach of contract claim under the 

Agreement (see generally McCormick v Favreau, 82 AD3d 1537, 1541 [3d Dept 

2011] [affirming dismissal of breach of contract claim where plaintiffs failed to offer 

any "affidavits or other evidence" in opposition to defendant's motion to dismiss in 

order to support a "material element" of plaintiffs' claim]). 

655839/2023 TANDYM GROUP, LLC vs. MISSION STAFFING INC. ET AL 

Motion No. 001 Page 6 of9 

[* 6]
INDEX NO. 655839/2023

NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 08/21/2024

7 of 9

Even if, however, privity was established, dismissal of the Complaint, as 

currently pleaded, would still be warranted. Though the Complaint largely focuses 

on defendants' purported solicitation of five employees as part of its recitation of 

factual allegations, a careful review ofTandym's Agreement-based causes of action 

reveals that they do not actually target defendants' purported solicitation of 

employees. Rather, as noted above, Tandym's claims are premised solely on a 

purported solicitation of "clients," as well as the misappropriation of unspecified 

confidential information (seecompl ,r,r 57·62, 64·69, 91·96). As the master of its 

complaint, Tandym is entitled to focus on whatever conduct it so chooses in support 

of its claims.6 But upon focusing on the solicitation of clients and misappropriation 

of confidential information, Tandym then fails to supply any critical details in 

support, including which, if any, clients were purportedly solicited or interfered 

with by defendants, or what, if any, confidential information was misappropriated. 

Without these critical details, Tandym's claims plainly fail to provide adequate 

notice of the transactions, occurrences, or series of transactions or occurrence at 

issue (CPLR 3013; see Trans-Continental Credit & Collection Corp. v Foti, 270 

AD2d 250, 250 [2d Dept 2000] [dismissing tortious interference claim where 

plaintiff sought to recover damages for interference with the agreement of unnamed 

employees]). 

In sum, defendants' motion to dismiss Tandym's First, Second, and Fifth 

Causes of Action is granted, and these are dismissed. 

IL Breach of Fiduciary Duty Claim (Third Cause of Action) 

The crux of Tandym's breach of fiduciary duty claim against Herman is that 

Herman breached unspecified fiduciary duties to Tandym by "soliciting or diverting 

Tandym's clients and business opportunities" to Mission and by "subverting or 

misappropriating Tandym's confidential information and trade secrets" (compl 

,r,r 73·76). These allegations, however, are nearly identical to those underlying 

Tandym's breach of contract claims and largely seek the same damages (cf id 

,r,r 57·62, 64·69). As such, Tandym's breach of fiduciary claim are dismissed as 

duplicative (Ullmann-Schneider v Lacher& Lovell-Taylor? P.C., 121 AD3d 415,416 

[1st Dept 2014] [dismissing breach of fiduciary duty claim as duplicative where 

claim was based on the same allegations as breach of contract claim]); 

III. Tortious Interference with Business Relationships (Fourth Cause of Action) 

To state a claim for tortious interference with business relations, a plaintiff 

must show "(1) the existence of a business relationship or its expectancy with a 

third·party; (2) defendant's interference with the relationship; (3) that defendant 

6 To be clear, Tandym certainly knew how to draft a cause of action focusing on the purported 

improper solicitation of employees, as its Fifth Cause of Action alleges that "Mission encouraged 

Herman to use Tandym's confidential information and trade secrets to unlawfully solicit Tandym's 

clients and employees" (compl ,r 79). 

655839/2023 TANDYM GROUP, LLC vs. MISSION STAFFING INC. ET AL 

Motion No. 001 Page 7 of9 

[* 7]
INDEX NO. 655839/2023

NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 08/21/2024

8 of 9

acted with the sole purpose of harming plaintiff or used dishonest, unfair or 

improper means; and (4) that plaintiff sustained damages" (Icahn v Lions Gate 

Entertainment Corp., 31 Misc 3d 1205[A], at *12·13 [Sup Ct, NY County, 2011], 

citing Carvel Corp. v Noonan, 3 NY3d 182, 190 [2004]; NBT Bancorp. v 

Fleet/Norstar Fin. Group, Inc., 87 NY2d 614, 620·625 [1996]; Guard-Life Corp. v S. 

Parker Hardware Mfg. Corp., 50 NY2d 183, 190-197 [1990])). Such claims require 

allegations that defendants' "conduct was motivated solely by malice or to inflict 

injury by unlawful means going beyond mere self-interest or other economic 

considerations" (Bradbury v Israel, 204 AD3d 563, 564·565 [1st Dept 2022]). 

Here, Tandym failed to sufficiently allege that defendants acted with malice 

or an intent to injure Tandym. As alleged, Tandym's tortious interference with 

business relations claims flows from the fact that Mission purportedly encouraged 

Herman to "use Tandym's confidential information and trade secrets" to solicit 

Tandym's clients and employees and obtain an unfair advantage in its competition 

with Tandym (compl ,r 79). Notably missing from Complaint are anyallegations 

explaining how, if at all, defendants acted with malice or were otherwise motivated 

by unlawful means. Nor are there any allegations that would support a reasonable 

inference of such malice or use of unlawful means. Instead, Tandym merely alleges 

in conclusory fashion that Herman acted "with malice, or in knowing disregard or 

indifference to the rights and interests of Tandym" (id ,r,r 80·84). In the absence of 

any non·conclusory allegations supporting this material element, Tandym's tortious 

interference with business relations claim fails to state a plausible claim for relief. 

Defendants' motion to dismiss the Fourth Cause of Action is granted and the 

claim is dismissed. 

IV. Unfair Competition and Misappropriation of Confidential Information (Sixth 

and Seventh Causes of Action) 

In New York, to establish a claim for unfair competition, "a plaintiff must 

demonstrate that the defendant wrongfully diverted the plaintiffs business to itself' 

(McKinnon Doxsee Agency, Inc. v Gallina, 187 AD3d 733, 737 [2d Dept 2020]; 

accord Mitzvah Inc. v Power, 106 AD3d 485, 487 [1st Dept 2013] ["The evidence also 

raises factual issues to support the cause of action alleging that defendants engaged 

in unfair competition by misappropriating client information plaintiff had 

negotiated to purchase from Pisa Brothers, and using it to defendants' commercial 

advantage"]). Similarly, to establish a claim for misappropriation of trade secrets or 

confidential information, a plaintiff must allege "(I) that it possessed a trade secret, 

and (2) that the defendants used that trade secret in breach of an agreement, 

confidential relationship or duty, or as a result of discovery by improper means" 

(Schroeder v Pinterest Inc., 133 AD3d 12, 27 [1st Dept 2015]). 

Here, Tandym's claims for unfair competition and misappropriation of 

confidential information are both premised on the purported "pirating," "misuse," 

655839/2023 TANDYM GROUP, LLC vs. MISSION STAFFING INC. ET AL 

Motion No. 001 Pages of9 

[* 8]
INDEX NO. 655839/2023

NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 08/21/2024

9 of 9

"misappropriation," and/or "disclosure" of Tandym's confidential information (see 

compl ,r,r 98-105, 107·112). Aside from this conclusory assertion, however, the 

Complaint fails to identify what, if any, confidential information was purportedly 

misappropriated by defendants or defendants effectuated such a misappropriation. 

Because "the typical questions of who, what, when, where, why, and how have not 

been answered in any manner, shape, or form" by these allegations, dismissal of 

these two claims is warranted (see InterFysio, LLC v Catherine May Co-Damm, 

2006 WL 8089346, at *1 [Sup Ct, New York County, Aug. 1, 2006]). 

Defendants' motion to dismiss the Sixth and Seventh Causes of Action is 

granted, and the claims are dismissed. 

*** 

Before concluding, the court is compelled to make a final point: as defendants 

note, Tandym's complaint is a near carbon copy of a separate lawsuit against 

different defendants pending before the New York State Supreme Court, New York 

County, captioned Tandym Group, LLC v Atlas Search LLC et al, Index No. 

655837/2023 (compare NYSCEF # 8 with NYSCEF # 9). This seemingly explains 

why (1) the Complaint refers to non-existent contractual terms, (2) Tandym's claims 

are largely unconnected to the defendants it has chosen to sue, and (3) Tandym 

otherwise fails to provide any requisite details necessary to give adequate notice of 

its claims to defendants. Put bluntly, the pleading was woefully lacking and riddled 

with inaccuracies and deficiencies abound. 

Conclusion 

In view of the above, it is hereby 

ORDERED that defendants' motion to dismiss (MS00I) is granted; and it is 

further 

ORDERED that defendants shall serve a copy of this order together with a 

notice of entry upon plaintiff and the Clerk of the Court within 10 days of this order. 

This constitutes the Decision and Order of the court. 

08/21/2024 

DATE 

CHECK ONE; 

APPLICATION: 

CHECK IF APPROPRIATE: 

CASE DISPOSED 

GRANTED □ DENIED 

SETTLE ORDER 

INCLUDES TRANSFER/REASSIGN 

655839/2023 TANDYM GROUP, LLC vs. MISSION STAFFING INC. ET AL 

Motion No. 001 

MARGARET A. CHAN, J.S.C. 

NON-FINAL DISPOSITION 

GRANTED IN PART 

SUBMIT ORDER 

FIDUCIARY APPOINTMENT 

D OTHER 

D REFERENCE 

Page 9of9 

[* 9]