American Entrance Servs., Inc. v Roeder

American Entrance Servs., Inc. v Roeder 2015 NY Slip Op 05583 Decided on June 25, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 25, 2015
Friedman, J.P., Andrias, Saxe, Richter, Gische, JJ.
15543 154079/13

[*1] American Entrance Services, Inc., et al., Plaintiffs-Appellants,

v

Ronald Roeder, et al., Defendants-Respondents.

Altman Schochet LLP, New York (Irena Shternfeld of counsel), for appellants.

Graham Curtin, P.A., New York (John Maloney of counsel), for respondents.

Order, Supreme Court, New York County (Charles E. Ramos, J.), entered June 13, 2014, which, to the extent appealed from as limited by the briefs, granted defendants' motion to dismiss plaintiffs' claims for misappropriation of trade secrets and unfair competition, and denied plaintiffs' cross motion to amend the complaint to add a claim of trespass, unanimously affirmed, with costs.

Plaintiffs' claims for misappropriation of trade secrets and unfair competition are time-barred, since plaintiffs had knowledge of defendants' alleged use of their trade secrets beginning in 2006, more than seven years before they filed this action (see CPLR 214[4]; Mahmood v Research in Motion Ltd. , 2012 WL 242836, *4, 2012 US Dist LEXIS, *9-12 [SD NY, Jan. 24, 2012, No. 11-Civ-5345(KBF)] [unfair competition]; Synergetics USA, Inc. v Alcon Laboratories, Inc. , 2009 WL 2016872, *2, 2009 US Dist LEXIS 58899, *5-6 [SD NY, July 9, 2009, No. 08-Civ-3669(DLC)] [misappropriation of trade secrets]). Given plaintiffs' knowledge, the continuing tort doctrine does not apply (see Synergetics , 2009 WL 2016872, *2, 2009 US Dist LEXIS 58899, *6).

The court properly denied plaintiffs' motion to amend the complaint to add a claim for trespass. The proposed claim, as pleaded, was for conversion of property, not for trespass (see Sporn v MCA Records , 58 NY2d 482, 487 [1983]). Because the alleged conversion occurred in 2005, eight years before the filing of this action, the proposed claim is time-barred (see CPLR 214[4]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 25, 2015

CLERK