### Ramirez v Issa 2024 NY Slip Op 31058(U) March 28, 2024 Supreme Court, Kings County Docket Number: Index No. 521206/2023 Judge: LeonRuchelsman Cases posted with a "30000" identifier, i.e., 2013 NY Slip

Op30001(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

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### 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 MotionSeq. 

### #15 &

### #18
The defendants have moved seeking to enjointhe plaintiff from utilizing the company's customer list and intellectual property and to order the.plaintiff to return such intellectual propertyto 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 37th street, in New York County. 

### The plaintiff, CesarRamirez, 

### was employed as 

### an executive chef by the defendahts s~n~e 2009 and a~ of 2022 

### receivedtwenty-five of all

### profits rep;tesentin9 

### a twenty-five pe.rcent ownership

### .interest. in.Manh.3:ttan 

### Fare 

### Corp. The pla:Lntiff.s ins

### titut;ed 

### thig 1awsui

### t alleging 

### that Ramir.ez was 

### fired without any justification. The 

### de:E"endants an,swered and



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### FILED: KINGS COUNTY CLERK 03/28/2024 02:24 PM INDEX NO. 521206/2023 NYSCEF DOC. NO. 326 RECEIVED NYSCEF: 03/28/2024

2 of 8 asserted affirmative defenses and counterclaims that the plaintiffRarttire·z and his wife, plaintiff Adriana Rodriguez engaged intheft and fraud and soug.ht to harmManhattan 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 customerlistand 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 theplaintiff has demanded and wouldbe 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 plaintiff0 (id). It is well established that "the party seeking

## a preliminary inj11nctionmust demonstrate a probability of success on the merits, danger of irreparable injuryin 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


### 2



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### FILED: KINGS COUNTY CLERK 03/28/2024 02:24 PM INDEX NO. 521206/2023 NYSCEF DOC. NO. 326 RECEIVED NYSCEF: 03/28/2024

3 of 8 [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 shouldbe used sparingly" (Town .of Smithtown v. Carlson, 204 AD2d 537, 614 NYS2d 18 [2dDept,, 1994]). Thus, the Second Department has been clear that theparty seeking the drastic remedy of a preliminary injunction has the bu.rden o'fproving each Of the above noted elements "by Clear and c:onvincing evidence" (Liotta v. Mattone, 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 SuffolkCounty 2012])
. TO establish theplaintiff 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±ngLtd., 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 1protectable trade 

### seo~etn (id). The
3



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### FILED: KINGS COUNTY CLERK 03/28/2024 02:24 PM INDEX NO. 521206/2023 NYSCEF DOC. NO. 326 RECEIVED NYSCEF: 03/28/2024

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### court explained that

# \'a trade secretmay exist in a combination of characteristics and components, eachof which, by 

### itself is· in the public domain, butthe unifiedprocess, design and operation Cif which, 

### in unique combination, af£ords a competitiveadvantage" 

### (id). Therefore, customer lists willqualify as trade secrets where the list is within the exclusive knowledge of the company and cannot be ''reaq.ily ascertained"by others inthe industry without "extraordinaryefforts" (Pollerv. BioScrip Inc., 974 F.Supp2d 204 

### [S.D.N.Y. 2013]). 

### However, contact information of customers that is ''littlemore 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 couldeasilybe recalledby 

### 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 andbusiness habits of particular customers is not confidential." (id)
. Cases that have 

### ·held customer lists aretrade secretswhere itwouldbe difficult to acquire that information from other sources since theycontain customer preferences, refers to suchinformation that cannot ~imply

### be asked.of the customer 

### (NorthAtlantic :tnstrurnerits Inc.,
v.. Haber, 188 F3d 38 [2d. 

### Cir 1.999]). In instanceswhere 

### the cust:omerpreferencesare part of \\a long, difficult process to

4



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### FILED: KINGS COUNTY CLERK 03/28/2024 02:24 PM INDEX NO. 521206/2023 NYSCEF DOC. NO. 326 RECEIVED NYSCEF: 03/28/2024

5 of 8 educate and convert a prospective customerto the benefits 

## of the process" being- offered then such preferences; like the customer list itselfmay afford trade secretprotection (see, Webcraft Techrioloqies Inc., v. Mccaw, 674 F.Supp. 1039 [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 ispriv-ate and 

### onlya handful of employees had access to it. Second, the customer list did not mere1y contain 

### a list of customers but included farmore exclusive information. Thus, the customer information includes "Iiotes and observations made by Company personnel about each customer'spreferences and idiosyncrasies or special requirements" and can only be "reproduced through years of meticlllous effort as was investedby the Company and Issa over manyyears" (Memorandum of Law in Support, Page 15 [NYSCEF Doc. No. 287]). Indeed, Mr. Issa provided an affidavit whereinhe stated that at his "direction, Manhattan Fare employees compiled

a confidential proprietary list 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:omtime t.6 

### time and

### rnodi:rieci based on changes in customerbase 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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### FILED: KINGS COUNTY CLERK 03/28/2024 02:24 PM INDEX NO. 521206/2023 NYSCEF DOC. NO. 326 RECEIVED NYSCEF: 03/28/2024

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### 285]). Although the plaintiff's counsel questions the existence bf such a 

### list there is 

### no evidence presentedby 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, thedefendants 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 bemeasured inmoney 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 andwhen they do so, theymay not utilize the customer list of the 

### defendant restaurant. Consequently, 

### the 

### motion seeking 

### an injunctionprohibitingthe

### plaintiffs from utilizing

### the customer list is

### granted.

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### FILED: KINGS COUNTY CLERK 03/28/2024 02:24 PM INDEX NO. 521206/2023 NYSCEF DOC. NO. 326 RECEIVED NYSCEF: 03/28/2024

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### Concerning

### the Instagram account of the restaurant, Mr. Issa states that he created the account underthe name Chef's Table and that over time the operation of the account as well as the pas-Swords were given toplaintiffAdriana Rodriguez (see, Affidavit ofMoneer 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 Instagramaccount to which the Defendants referwas created, ownedand operated at all relevant times 

### by the PlaintiffAdriana Rodriguez, The Plaintiff Rodriguez created the accountbyherself andonher own time. She registered the account with her perscirial cellphone m.1rt1her and has always maintained exclusive access toher individual Instagram account in 2020 

### frorn its inception to date, She was the sole individualposting on the Insta.gram accm.:int, and the only person with access tothe account was and is Plaintiff ~od±iguez. All the pictures o~ the Instagram account were taken 

### by 

### Plaintiffs and depict fpod that was prepared solelybyhe.r husband CesarRamirez. The Plaintiff Rodriguez is the sole owner of this Instagram a.ccount" (id., at page 6). While there is no 

### affidavit fromMs, 

### Rodriguez in this regard, the 

### information subrrii

### tted including 

### the 

### opening

## of the. 

### Instagram account surely tais.es questions of fact 

### whetherthe. 

### account belongs to Chef's

7



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### FILED: KINGS COUNTY CLERK 03/28/2024 02:24 PM INDEX NO. 521206/2023 NYSCEF DOC. NO. 326 RECEIVED NYSCEF: 03/28/2024

8 of 8 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 partyhas 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 mustbepresented. 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 canbe no injunctive relief concerning the account until the factual issues of 'Ownership are resolved. Therefore, the motion seeking any injunctive reliefregarding the Instagra:maccount is denied. So ordered.

DATED: March 28, 2024 Brooklyn

### N.Y. ENTER:

Hon. JSC



# s 

# jD

Leon Ruchelsman



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