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.
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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 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 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: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. 

DATED: March 28, 2024 

Brooklyn N.Y. 

ENTER: 

Hon. 

JSC 

s 

jD Leon Ruchelsman 

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